GSIS V PACIFIC Meanwhile, the Philippine Airlines (PAL) Boeing 737, manned by pilots Rogelio

Casio and Ruel Isaac, was preparing for take-off along runway 13. The PAL pilots
requested clearance to push and start[19] on runway 13. Ernesto Linog, Jr., air traffic
controller on duty at the ATO issued the clearance.[20] Subsequently, at 7:20 and 18
The Case
seconds, Linog, Jr. gave PALs Boeing 737 clearance to take off.[21] Pilots Casio and
Before the Court are three consolidated petitions for review[1] of the 28 October Isaac then proceeded with the take-off procedure.[22] While already on take-off roll,
2004 Decision[2] and the 15 November 2005 Resolution[3] of the Court of Appeals in Casio caught a glimpse of the Twin Otter on the left side of the Boeing 737 about to
CA-G.R. CV No. 73214. The 28 October 2004 Decision affirmed the 27 July 2001 cross runway 13.[23]
Decision[4] of the Regional Trial Court (Branch 112) of Pasay City. The 15 November
2005 Resolution modified the 28 October 2004 Decision of the Court of Appeals.
While the Twin Otter was halfway through runway 13, Galvez noticed the Boeing
737 and told Bungabong that an airplane was approaching them from the right
The Antecedent Facts side.[24] Bungabong then said, Diyos ko po and gave full power to the Twin
Otter.[25] The PAL pilots attempted to abort the take-off by reversing the thrust of
On 2 April 1996, at around 6:45 p.m., the Twin Otter aircraft of Philippine Airways the aircraft.[26] However, the Boeing 737 still collided with the Twin Otter.[27]
Corporation (PAC) arrived at the Manila International Airport[5] from El Nido,
Palawan.[6] In command of the aircraft was Ely B. Bungabong.[7] With Bungabong in
the cockpit was Michael F. Galvez as co-pilot.[8]
The Boeing 737 dragged the Twin Otter about 100 meters away.[28] When the Twin
Otter stopped, PACs pilots ran away from the aircraft for fear it might
explode.[29] While observing the Twin Otter from a safe distance, they saw
Upon touchdown, the Twin Otter taxied along the runway and proceeded to the passengers running down from the Boeing 737.[30] When PACs pilots returned to
Soriano Hangar to disembark its passengers.[9] After the last passenger the aircraft to get their personal belongings, they saw that the Twin Otter was a
disembarked, PACs pilots started the engine of the Twin Otter in order to proceed total wreck.[31]
to the PAC Hangar located at the other end of the airport.[10] At around 7:18 p.m.,
Galvez contacted ground control to ask for clearance to taxi to taxiway
delta.[11] Rogelio Lim, ground traffic controller on duty at the Air Transportation
At 7:21 and 2 seconds on that fateful evening, the PAL pilots informed ATOs control
Office (ATO), issued the clearance on condition that he be contacted again upon
tower that they had hit another aircraft, referring to the Twin Otter.[32] Bungabong
reaching taxiway delta intersection.[12]
suffered sprain on his shoulder while Galvez had laceration on his left thumb.[33] An
ambulance brought the two pilots to Makati Medical Center where they were
treated for serious and slight physical injuries.[34]
PACs pilots then proceeded to taxi to taxiway delta at about 7:19 and 19
seconds.[13] Upon reaching the intersection of taxiway delta, Galvez repeated the
request to taxi to taxiway delta, which request was granted.[14] Upon reaching fox
On 7 May 1996, PAC, Bungabong, and Galvez filed in the Regional Trial Court
1, Galvez requested clearance to make a right turn to fox 1 and to cross runway 13
(Branch 112) of Pasay City a complaint[35] for sum of money and damages against
in order to proceed to fox 1 bravo.[15]ATO granted the request.[16] At this point, the
PAL, Casio, Isaac, ATO, Lim, Linog, Jr., and ATOs traffic control supervisor, Danilo
Twin Otter was still 350 meters away from runway 13.[17] Upon reaching runway 13,
Alzola. The Government Service Insurance System (GSIS), as insurer of the Boeing
PACs pilots did not make a full stop at the holding point to request clearance right
737 that figured in the collision, intervened.
before crossing runway 13.[18] Without such clearance, PACs pilots proceeded to
cross runway 13.

The Ruling of the Trial Court

1
The trial court ruled that the proximate cause of the collision was the negligence of
Alzola, Lim, and Linog, Jr., as ATOs traffic control supervisor, ground traffic
controller, and air traffic controller, respectively, at the time of the collision. The
trial court further held that the direct cause of the collision was the negligence
of Casio and Isaac, as the pilots of the Boeing 737 that collided with the Twin Otter.
The decretal portion of the trial courts decision reads:
PREMISES CONSIDERED, judgment is hereby rendered ordering defendants
Philippine Air Lines and its pilots, Rogelio Casio and Ruel Isaac, and Air
Transportation Office and its comptrollers, Danilo Alzola, Rogelio Lim and Ernesto
Linog, Jr., jointly and severally, to pay:
a) Plaintiff Pacific Airways Corporation the amount of Php15,000,000.00 and the
further amount of Php100,000.00 a day from April 2, 1996 until it is fully
reimbursed for the value of its RP-C1154 plane, as actual damages, and the amount
of Php3,000,000.00, as exemplary damages, and the amount of Php1,000,000.00,
as and for attorneys fees and expenses of litigation;
b) Plaintiffs Ely B. Bongabong[36] and Michael F. Galvez, the amount of Php5,000.00
each, as actual damages; the amount of Php500,000.00, as and for moral damages;
Php500,000.00 as and for exemplary damages, and the amount of Php50,000.00, as
and for attorneys fees;
c) Defendants are, likewise, ordered to pay, jointly and severally, to plaintiffs the
costs of this suit.
SO ORDERED.[37]
PAL, Casio, Isaac, GSIS, ATO, Alzola, Lim, and Linog, Jr., all appealed the trial courts
Decision to the Court of Appeals.
2
The Ruling of the Court of Appeals
The Court of Appeals found that the trial court did not commit any reversible error.
In its 28 October 2004 decision, the Court of Appeals affirmed in toto the decision
of the trial court, thus:
WHEREFORE, the instant appeal is hereby DISMISSED. The decision of the Regional
Trial Court, Branch 112, Pasay City dated July 27, 2001 is hereby AFFIRMED in toto.
SO ORDERED.[38]
PAL, Casio, Isaac, GSIS, ATO, Alzola, Lim, and Linog, Jr., filed their respective
motions for reconsideration. The appellate court denied for lack of merit all the
motions for reconsideration except the one filed by Linog, Jr.
The Court of Appeals gave weight to the 20 March 2003 Decision[39] on appeal of
the RTC (Branch 108) of Pasay City in Criminal Case No. 02-1979 acquitting Linog,
Jr., who was convicted in the original Decision together with Alzola and Lim, of
reckless imprudence resulting in damage to property with serious and slight
physical injuries in connection with the collision. Since Alzola and Lim did not
appeal, the judgment of conviction against them became final. Alzola and Lim
were sentenced to arresto mayor or imprisonment for two (2) months.[40]
The Court of Appeals reasoned that since the trial court in the criminal case has
ruled that Linog, Jr. was not negligent, then the act from which the civil liability
might arise did not exist. In its 15 November 2005 Resolution, the Court of Appeals
decreed:
WHEREFORE, the decision subject of the motions for reconsideration is MODIFIED
in that the case against defendant-appellant ERNESTO LINOG, JR. is dismissed. The
decision is AFFIRMED in all other respects.
SO ORDERED.[41]
Hence, the instant consolidated petitions for review.
In G.R. No. 170418, petitioners PAL, Casio, and Isaac argue that the Court of
Appeals should have applied the emergency rule instead of the last clear chance
doctrine. Petitioners claim that even if the PAL pilots were negligent, PAL had
exercised due diligence in the selection and supervision of its pilots.
Petitioners contend that the Court of Appeals awarded damages without any
specific supporting proof as required by law. Petitioners also claim that the Court of
Appeals should have awarded their counterclaim for damages.
In G.R. No. 170414, petitioner GSIS points out that PACs pilots were the ones guilty
of negligence as they violated the Rules of the Air, which provide that right of way
belongs to the aircraft on take-off roll and the aircraft on the right side of
another. GSIS stresses that such negligence was the proximate cause of the
collision. GSIS posits that PAC, Bungabong, and Galvez should be held solidarily
liable to pay GSIS the cost of repairing the insured aircraft.
In G.R. No. 170460, petitioners ATO, Alzola, and Lim call our attention to the fact
that PAC was a mere lessee, not the owner of the Twin Otter. They argue that PAC,
as mere lessee, was not the real party-in-interest in the complaint seeking recovery
for damages sustained by the Twin Otter. Petitioners maintain that ground and air
traffic clearances were the joint responsibility of ATO and the pilots-in-
command. Petitioners aver that Bungabong and Galvez were negligent in asking for
clearance to cross an active runway while still 350 meters away from the runway.
Petitioners claim that PAL had the right of way and that PACs pilots had the last
clear chance to prevent the collision.
3
The Issue
The sole issue for resolution is who among the parties is liable for negligence under
the circumstances.
The Courts Ruling
The petitions are meritorious.
In a petition for review under Rule 45, only questions of law may be raised. This
rule, however, admits of certain exceptions as when the judgment of the Court of
Appeals is premised on a misapprehension of facts or the Court of Appeals fails to
notice certain relevant facts which, if properly considered, will justify a different
conclusion.[42]
After thoroughly going over the evidence on record in this case, we are unable to
sustain the finding of fact and legal conclusion of the Court of Appeals.
To ascertain who among the parties is liable for negligence, we must refer to the
applicable rules governing the specific traffic management of aircrafts at an airport.
The Rules of the Air[43] of the Air Transportation Office apply to all aircrafts
registered in the Philippines.[44] The Boeing 737 and the Twin Otter in this case
were both registered in the Philippines. Both are thus subject to the Rules of the
Air. In case of danger of collision between two aircrafts, the Rules of the Air state:
2.2.4.7 Surface Movement of Aircraft. In case of danger of collision between two
aircrafts taxiing on the maneuvering area of an aerodrome, the following shall
apply:
a) When two aircrafts are approaching head on, or approximately so, each shall
stop or where practicable, alter its course to the right so as to keep well clear.
 position to determine if there was an aircraft on a take-off roll at the runway. The
collision would not have happened.
b) When two aircrafts are on a converging course, the one which has the other on
its right shall give way.[45] (Emphasis supplied)

In this case, however, the Boeing 737 and the Twin Otter were not both taxiing at
the time of the collision. Only the Twin Otter was taxiing. The Boeing 737 was
already on take-off roll. The Rules of the Air provide:
2.2.4.6 Taking Off. An aircraft taxiing on the maneuvering area of an aerodrome
shall give way to aircraft taking off or about to take off.[46] (Emphasis supplied)
ATO, Alzola, Lim, and Linog, Jr.
The Rules of Air Control govern airplane traffic management and clearance at the
then Manila International Airport. It contains several provisions indicating that
airplane traffic management and clearance are not the sole responsibility of ATO
and its traffic controllers, but of the pilots-in-command of aircrafts as well. The
Rules of Air Control state:

Therefore, PALs aircraft had the right of way at the time of collision, not simply
because it was on the right side of PACs aircraft, but more significantly, because it
was taking off or about to take off.
PACs Pilots
1.3 The pilot-in-command of an aircraft shall, whether manipulating the controls or
not, be responsible for the operation of the aircraft in accordance with the rules of
the air, except that he may depart from these rules in circumstances that render
such departure absolutely necessary in the interest of safety. (Emphasis supplied)

1.5 The pilot-in-command of an aircraft shall have final authority as to the

disposition of the aircraft while he is in command.[51] (Emphasis supplied)
For disregarding PALs right of way, PACs pilots were grossly negligent. 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 3.1 Clearances are based solely on expediting and separating aircraft and do not
other persons may be affected.[47] constitute authority to violate any applicable regulations for promoting safety of
flight operations or for any other purpose. (Emphasis supplied)

xxxx
We find it hard to believe that PACs pilots did not see the Boeing 737 when they
looked to the left and to the right before approaching the runway. It was a clear If an air traffic control clearance is not suitable to the pilot-in-command of an
summer evening in April and the Boeing 737, only 200 meters away, had its inboard aircraft, he may request, and, if practicable, obtain an amended
lights, outboard lights, taxi lights, and logo lights on before and during the actual clearance. [52] (Emphasis supplied)
take-off roll.[48] The only plausible explanation why PACs pilots did not see the
Boeing 737 was that they did not really look to the left and to the right before
crossing the active runway.

Records show that PACs pilots, while still 350 meters away, prematurely requested
10.1.5 Clearances issued by controllers relate to traffic and aerodrome
clearance to cross the active runway.[49] ATO points out that PACs pilots should
conditions only and do not relieve a pilot of any responsibility whatsoever in
have made a full stop at the holding point to ask for updated clearance right before
crossing the active runway.[50] Had PACs pilots done so, ATO would by then be in a

4
connection with a possible violation of applicable rules and
regulations.[53] (Emphasis supplied)
Therefore, even if ATO gave both PALs pilots and PACs pilots clearance to take off
and clearance to cross runway 13, respectively, it remained the primary
responsibility of the pilots-in-command to see to it that the respective clearances
given were suitable. Since the pilots-in-command have the final authority as to the
disposition of the aircraft, they cannot, in case a collision occurs, pass the blame to
ATO for issuing clearances that turn out to be unsuitable.
The clearance to cross runway 13, premature as it was, was not an absolute license
for PACs pilots to recklessly maneuver the Twin Otter across an active
runway. PACs pilots should have stopped first at the holding point to ask for
clearance to cross the active runway. It was wrong for them to have relied on a
prematurely requested clearance which was issued while they were still 350 meters
away. Their defense, that it did not matter whether the clearance was premature
or not as long as the clearance was actually granted,[54] only reveals their poor
judgment and gross negligence in the performance of their duties.
On the other hand, evidence on record shows that the air traffic controller properly
issued the clearance to take off to the Boeing 737. Nothing on record indicates any
irregularity in the issuance of the clearance. In fact, the trial court, in the criminal
case for reckless imprudence resulting in damage to property with serious and
slight physical injuries in connection with the collision, ruled that air traffic
controller Linog, Jr. was not negligent. The Court of Appeals, in its 15 November
2005 Resolution, absolved Linog, Jr. of civil liability for damages based on his
acquittal in the criminal case.
While Alzola and Lim, as found by the trial court in the criminal case for reckless
imprudence, may have been negligent in the performance of their functions, such
negligence is only contributory.[55] Their contributory negligence arises from their
granting the premature request of PACs pilots for clearance to cross runway 13
while the Twin Otter was still 350 meters away from runway 13. However, as
explained earlier, the granting of their premature request for clearance did not
relieve PACs pilots from complying with the Rules of the Air.
5
PALs Pilots
Records show that PALs pilots timely requested clearance to take off. Linog, Jr.,
ATOs air traffic controller, duly issued the clearance to take off.[56] Under the Rules
of the Air, PALs aircraft being on take-off roll undisputedly had the right of
way.[57] Further, the Rules of Air Control provide:
2.2.4.1 The aircraft that has the right of way shall maintain its heading and speed, x
x x. [58] (Emphasis supplied)
Thus, even if Casio noticed from the corner of his eye a small airplane taxiing on the
left side and approaching halfway of fox 1,[59] it was fairly reasonable for PALs pilots
to assume that they may proceed with the take-off because the taxiing aircraft
would naturally respect their right of way and not venture to cross the active
runway while the Boeing 737 was on take-off roll.
Applicable by analogy is the case of Santos v. BLTB,[60] where the Court applied the
principle that a motorist who is properly proceeding on his own side of the
highway, even after he sees an approaching motorist coming toward him on the
wrong side, is generally entitled to assume that the other motorist will return to his
proper lane of traffic.
Proximate Cause
After assiduously studying the records of this case and carefully weighing the
arguments of the parties, we are convinced that the immediate and proximate case
of the collision is the gross negligence of PACs pilots. Proximate cause is defined as
that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not
have occurred.[61] In this case, the fact that PACs pilots disregarded PALs right of
way and did not ask for updated clearance right before crossing an active runway
was the proximate cause of the collision. Were it not for such gross negligence on
the part of PACs pilots, the collision would not have happened.
The Civil Code provides that when a plaintiffs own negligence is the immediate and
proximate cause of his injury, he cannot recover damages.
Art. 2179. When the 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 courts shall
mitigate the damages to be awarded. (Emphasis supplied)
Under the law and prevailing jurisprudence,[62] PAC and its pilots, whose own gross
negligence was the immediate and proximate cause of their own injuries, must
bear the cost of such injuries. They cannot recover damages. Civil Case No. 96-0565
for sum of money and damages, which PAC, Bungabong, and Galvez filed against
PAL, Casio, Isaac, ATO, Alzola, Lim, and Linog, Jr. should have been dismissed for
lack of legal basis.
PALs Counterclaims
We find supported by law and evidence on record PALs counterclaim for actual or
compensatory damages but only in the amount of US$548,819.93[63] representing
lease charges during the period the Boeing 737 was not flying. The said amount
cannot be claimed against the insurance policy covering the Boeing 737. In this
connection, the Civil Code provides:
Art. 2207. If the plaintiffs property has been insured, and he has received
indemnity from the insurance company for the injury or loss arising out of the
wrong or breach of contract complained of, the insurance company shall be
subrogated to the rights of the insured against the wrongdoer or the person who
has violated the contract. If the amount paid by the insurance company does not
fully cover the injury or loss, the aggrieved party shall be entitled to recover the
deficiency from the person causing the loss or injury. (Emphasis supplied)
Under the law, GSIS, as insurer subrogee of PALs right to claim actual or
compensatory damages in connection with the repair of the damaged Boeing 737,
6
is entitled to reimbursement for the amount it advanced. GSIS claims
reimbursement for the amount of US$2,775,366.84.[64] In support of its claim, GSIS
presented statements of account, check vouchers, and invoices[65] proving payment
for the repair of the Boeing 737 in the total amount of US$2,775,366.84. We find
the claim fully supported by evidence on record and thus we resolve to grant the
same.
With regard to PALs other counterclaims, settled is the rule that the award of moral
and exemplary damages as well as attorneys fees is discretionary based on the
facts and circumstances of each case. The actual losses sustained by the aggrieved
parties and the gravity of the injuries must be considered in arriving at reasonable
levels.[66]Understandably, Casio and Isaac suffered sleepless nights and were
temporarily unable to work after the collision. They are thus entitled to moral
damages as well as exemplary damages considering that PACs pilots acted with
gross negligence.[67] Attorneys fees are generally not recoverable except when
exemplary damages are awarded[68] as in this case. We thus deem the amounts
of P100,000 in moral damages, P100,000 in exemplary damages, and P50,000 in
attorneys fees to be in accordance with prevailing jurisprudence and appropriate
given the circumstances.
WHEREFORE, we GRANT the petitions. We SET ASIDE the 28 October 2004 Decision
and the 15 November 2005 Resolution of the Court of Appeals in CA-G.R. CV No.
73214 affirming in toto the 27 July 2001 Decision of the Regional Trial Court
(Branch 112) of Pasay City. However, we SUSTAIN the dismissal of the case against
Ernesto Linog, Jr.
Civil Case No. 96-0565 for sum of money and damages, filed by Pacific Airways
Corporation (PAC), Ely B. Bungabong, and Michael F. Galvez, is DISMISSED for lack
of legal basis.
Pacific Airways Corporation, Ely B. Bungabong, and Michael F. Galvez
are ORDERED to solidarily pay:
(1) Philippine Airlines, Inc. actual or compensatory damages in the amount of
US$548,819.93;
(2) Rogelio Casio and Ruel Isaac individually moral damages in the amount
of P100,000, exemplary damages in the amount of P100,000, and attorneys fees in
the amount of P50,000; and
(3) the Government Service Insurance System, as insurer subrogee of
Philippine Airlines, actual or compensatory damages in the amount
of US$2,775,366.84.
No pronouncement as to costs.
SO ORDERED.
CRESENCIO BAO AND HEIRS OF THE DECEASED AMANCIO
ASUMBRADO, NAMELY: ROSALINDA ASUMBRADO, VICENTE
ASUMBRADO, ROEL ASUMBRADO, ANNALYN ASUMBRADO,
ARNIEL ASUMBRADO, ALFIE ASUMBRADO and RUBELYN
ASUMBRADO, - versus -
BACHELOR EXPRESS, INC./ CERES LINER, INC. and WENIFREDO
SALVAA,
GR NO. 191703
The Facts
In the early afternoon of November 6, 1993, respondent Wenifredo Salvaa (Salvaa)
was driving the bus owned by respondent Bachelor Express, Inc./Ceres Liner, Inc.
with plate number LVD-273 and body number 4042 (Bus 4042) along the national
highway at Magdum, Tagum City bound for Davao City. At about 1:20 in the
afternoon, he overtook a Lawin PUJ jeepney while negotiating a blind curve in a
descending road at Km. 60, causing him to intrude into the opposite lane and bump
the 10-wheeler Hino dump truck of petitioner Cresencio Bao (Bao) running uphill
from the opposite direction. The collision resulted in damage to both vehicles, the
subsequent death of the truck driver, Amancio Asumbrado (Asumbrado), and
serious physical injuries to bus driver Salvaa.
7
On March 11, 1994, Bao and the heirs of Asumbrado (collectively called petitioners)
filed a complaint4 for quasi-delict, damages and attorney's fees against
respondents, accusing Salvaa of negligently driving Bus 4042 causing it to collide
with the dump truck.
Respondents denied liability, claiming that prior to the collision, Bus 4042 was
running out of control because of a problem in the steering wheel system which
could not have been avoided despite their maintenance efforts. Instead, they
claimed that Asumbrado had the last clear chance to avoid the collision had he not
driven the dump truck at a very fast speed.
The RTC Decision
After due proceedings, the RTC found that the immediate and proximate cause of
the accident was the reckless negligence of the bus driver, Salvaa, in attempting to
overtake a jeepney along a descending blind curve and completely invading the
opposite lane. The photographs taken immediately after the collision, the Traffic
Accident and Investigation Report, and the Sketch all showed the dump truck at the
shoulder of its proper lane while the bus was positioned diagonally in the same
lane with its right side several feet from the center line.
Having established the negligence of its employee, the presumption of fault or
negligence on the part of the employer, respondent Bachelor Express, Inc./Ceres
Liner, Inc., arose, which it failed to rebut by evidence that it exercised due diligence
in the selection and supervision of its bus driver Salvaa. The RTC thus disposed of
the case as follows:
In View Of All The Foregoing, judgment is hereby rendered in favor of the plaintiffs
and against the defendants; ordering the defendants to solidarily pay:
1. To plaintiff Cresencio Bao -
(a) P700,000.00, as payment for his Hino dump truck which was rendered a total
wreck;
(b) P296,601.50 per month, as loss of earning of the Hino dump truck, to be
computed from November 6, 1993 with legal interest thereon until the
P700,000.00 mentioned in the next preceding number will be fully paid by the
defendants to plaintiff Cresencio Bao;
(c) P100,000.00 and P50,000.00, as moral damages and exemplary damages,
respectively;
2. To the Heirs of the late Amancio Asumbrado -
(a) P50,000.00, as civil indemnity for the death of Amancio Asumbrado;
(b) P20,268.45, as reimbursement for the medicines, hospitalization and funeral
expenses incurred by the late Amancio Asumbrado;
(c) P576,000.00, as loss of earning capacity of the late Amancio Asumbrado;
(d) P100,000.00 and P50,000.00, as moral damages and exemplary damages,
respectively;
3. To the Plaintiffs -
(a) P25,000.00, as reimbursement of the expenses incurred initially by them in the
preparation of this complaint and other expenses in instituting the suit;
8
(b) Attorney's fee in the sum of equivalent to 25% of plaintiffs' total claim against
the defendants plus P14,500.00, as appearance fees;
(c) Costs of suit.
SO ORDERED.5
The CA Ruling
On appeal, the CA affirmed the RTC's findings on respondents' negligence and
liability for damages, but deleted the separate awards of exemplary damages in
favor of petitioners for their failure to prove that respondents acted with gross
negligence.
Similarly, the appellate court deleted the awards for the value of and lost income
from the dump truck for lack of sufficient basis, awarding in their stead temperate
damages in the sums of P100,000.00 and P200,000.00, respectively. The CA also
deleted the award of moral damages to Bao for the damage to his property.
With respect to petitioner Heirs, the CA reduced the RTC's awards of actual
damages representing the hospital and funeral expenses from P20,268.45 to
P19,136.90; loss of earning capacity from P576,000.00 to P415,640.16; and moral
damages from P100,000.00 to P50,000.00.
Finally, the appellate court deleted the award of litigation expenses and reduced
the award of attorney's fees from 25% of petitioners' claims to P50,000.00.

The Issues Before The Court
In the instant petition, petitioners posit that respondent Salvaa was grossly
negligent in continuing to drive the bus even after he had discovered the
malfunction in its steering wheel. They further averred that the CA erred in
reducing the amounts of damages awarded by the RTC despite sufficient evidence.
The Court's Ruling
While the courts a quo, in their respective decisions, have concurred that the
proximate cause of the collision was the negligence of the bus driver, Salvaa, in
overtaking the jeepney in front as the bus traversed a curve on the highway, they,
however, imputed varied degrees of negligence on him. Thus, although the issue of
negligence is basically factual,6 the Court may properly pass upon this question
under Rule 45 of the Rules of Court.
In the case of Government Service Insurance System v. Pacific Airways
Corporation,7 the Court has defined gross negligence as 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.
In the present case, records show that when bus driver Salvaa 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,
Salvaa was grossly negligent in driving his bus. He was remiss in his duty to
9
determine that the road was clear and not to proceed if he could not do so in
safety.8
Consequently, the CA erred in deleting the awards of exemplary damages, which
the law grants to serve as a warning to the public and as a deterrent against the
repetition of similar deleterious actions. However, the award should be tempered
as it is not intended to enrich one party or to impoverish another. 9 Thus, the Court
reinstates the separate awards of exemplary damages to petitioners in the amount
of P50,000.00.
With respect to Bao, the award of moral damages for the loss of his dump truck
was correctly deleted since the damage to his vehicle was not shown to have been
made willfully or deliberately.10 However, the Court finds the grant of P100,000.00
as temperate damages for the damaged vehicle to be insufficient considering its
type as a 10-wheeler dump truck and its good running condition at the time of the
incident. Instead, the Court finds the amount of P400,000.00 as fair and reasonable
under the circumstances. With respect to the adjudged lost income from the dump
truck, the Court sustains, for being just and equitable, the award of temperate
damages in the sum of P200,000.00.
On the other hand, the Court upholds the grant to petitioner Heirs of P19,136.90 as
actual damages corresponding to the pecuniary loss that they have actually
sustained, P50,000.00 as death indemnity, the reduced awards of P50,000.00 as
moral damages and P415,640.16 as loss of earning capacity of the deceased
Asumbrado, which are all in conformity with prevailing jurisprudence.11
Finally, the attorney's fees of P50,000.00 as awarded by the CA is increased
to P100,000.00 considering the length of time that this case has been pending, or a
period of about 18 years since the complaint a quo was filed on March 11, 1994.
WHEREFORE, the assailed February 20, 2009 Decision and February 9, 2010
Resolution of the Court of Appeals
are AFFIRMED with MODIFICATIONS. Respondents are ordered to solidarily pay:
(1) petitioner Heirs of Amancio Asumbrado: On March 20, 2004, two vehicles, one driven by Jefferson Cham and insured with
petitioner Standard Insurance Co., Inc., and the other owned by respondent Arnold
(a) P19,136.90 as actual damages representing hospital and funeral expenses; Cuaresma and driven by respondent Jerry B. Cuaresma, figured in an accident at
North Avenue, Quezon City.3 Consequently, the damage on the vehicle driven by
(b) P415,640.16 as loss of earning capacity of the deceased Asumbrado;
Cham was repaired, the cost of which was borne by petitioner. Cham then
(c) P50,000.00 as death indemnity; executed a Release of Claim in favor of petitioner subrogating the latter to all his
rights to recover on all claims, demands, and rights of action on account of the loss,
(d) P50,000.00 as moral damages; and damage, or injury sustained as a consequence of the accident from any person
liable thereto.4 Based on said document, petitioner, in its letter5 dated April 15,
(e) P50,000.00 as exemplary damages. 2004 addressed to respondents, demanded the payment of the sum spent on
repairing the vehicle driven by Cham.

(2) petitioner Cresencio Bao: Meanwhile, on August 10, 2004, an Information6 was filed with the Metropolitan
Trial Court (MeTC) of Quezon City charging Cham of the crime of Reckless
(a) P400,000.00 as temperate damages for his damaged dump truck; Imprudence Resulting in Damage to Property docketed as Criminal Case No.
020256. During the pendency thereof, on March 17, 2008, petitioner, claiming that
(b) P200,000.00 as lost income of the said truck; and
respondents collided with Cham's vehicle in a reckless and imprudent manner, filed
(c) P50,000.00 as exemplary damages. a Complaint7 for Sum of Money with the MeTC of Manila against respondents,
docketed as Civil Case No. 184854, demanding payment of the sum of P256,643.26
representing the cost of repairs on Cham's vehicle.

Respondents, however, were declared in default on December 12, 2008 for failure
to file their responsive pleading to petitioner's Complaint despite several
(3) attorney's fees of P100,000.00 to petitioners collectively.
opportunities granted by the MeTC of Manila.8 As a result, petitioner was allowed
to present its evidence exparte.

SO ORDERED. Finding that petitioner sufficiently proved its claims by preponderance of evidence,
the MeTC ruled in favor of petitioner in its Decision9 dated January 8, 2010, the
dispositive portion of which reads:chanRoblesvirtualLawlibrary
STANDARD INSURANCE CO., INC., Petitioner, v. ARNOLD CUARESMA AND JERRY IN VIEW THEREOF, judgment is hereby rendered ordering defendants Arnold
B. CUARESMA, Respondents. Cuaresma and Jerry B. Cuaresma, jointly and severally,
DECISION to:chanRoblesvirtualLawlibrary

PERALTA, J.: 1. Pay plaintiff the sum of TWO HUNDRED FIFTY-SIX

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court seeking to reverse and set aside the Decision1 and Resolution,2 dated June
22, 2011 and January 16, 2012, respectively, of the Court of Appeals (CA) in CA-G.R.
SP No. 117785.
THOUSAND SIX HUNDRED FORTY-THREE PESOS AND TWENTY-SIX CENTAVOS
(Php256,643.26) with interest at the rate of 12% per annum from the date of the
filing of the complaint;
2. Pay plaintiff the sum of Php 10,000.00 as and for attorney's fees;

The antecedent facts are as follows:chanRoblesvirtualLawlibrary 3. Pay the costs of the suit.

10

SO ORDERED.
The RTC, however, reversed the ruling of the MeTC in its Decision10 dated
September 17, 2010. Contrary to the findings of the MeTC, the RTC found that not
only were there inconsistencies in the evidence presented by petitioner as to its
corporate identity as well as the amount of the supposed cost of indemnification,
but petitioner also failed to sufficiently prove that the proximate cause of the
damage incurred by Cham's vehicle was respondents' fault or negligence. In
addition, on respondents' argument that the instant case must be consolidated
with the prior criminal suit they filed against Cham, the RTC disagreed and ruled
that criminal and civil cases can proceed independently. 11cralawlawlibrary
On appeal, the CA likewise found that the evidence proffered by petitioner is
insufficient to support its averment of negligence. Consequently, it affirmed the
RTC's Decision and further denied petitioner's Motion for Reconsideration in its
Resolution12 dated January 16, 2012.
Hence, the present petition.
Petitioner essentially invokes the following ground to support its
petition:chanRoblesvirtualLawlibrary
I.
THE COURT OF APPEALS ERRED IN AFFIRMING THE CONCLUSIONS OF THE
REGIONAL TRIAL COURT THAT PETITIONER'S EVIDENCE, SPECIFICALLY THE
TESTIMONY OF ITS ASSURED, JEFFERSON CHAM AND ITS ASSISTANT VICE-
PRESIDENT FOR CLAIMS, CLETO D. OBELLO, JR., AS WELL AS THE TRAFFIC ACCIDENT
REPORT, ARE INSUFFICIENT TO PROVE ITS CLAIMS BY THE REQUIRED QUANTUM OF
EVIDENCE.
Petitioner contends that the testimonies of its witnesses Cham and Obello
sufficiently prove its claims, since the former has personal knowledge on the events
that transpired during the vehicular accident and the latter was in a position to
prove the amount incurred for the repair of the damages on Cham's vehicle. It also
argues that its failure to present SPO2 Felicisimo V. Cuaresma, the police
investigator who prepared the traffic accident report submitted in evidence, is not
fatal to its cause of action.
11
In their Comment,13 respondents counter that the bare allegations of Cham on
negligence cannot be deemed sufficient to prove petitioner's claim. They also claim
that in order for the traffic accident report to obtain probative value, the police
officer who prepared it must be identified in court. On a procedural matter,
respondents allege that petitioner, in failing to disclose the pendency of the
criminal suit against its assured Cham, is guilty of forum shopping.
Prefatorily, We address the issue of forum shopping in saying that the essence of
forum shopping is the filing by a party against whom an adverse judgment has been
rendered in one forum, seeking another and possibly a favorable opinion in
another suit other than by appeal or special civil action for certiorari.14 It is the act
of filing multiple suits involving the same parties for the same cause of action,
either simultaneously or successively for the purpose of obtaining a favorable
judgment.15 However, as the RTC already mentioned, there exists no forum
shopping herein for the filing of the instant suit is expressly allowed to proceed
independently of the criminal action filed by respondents.
In the similar case of Casupanan v. Laroya,16 wherein as a result of a vehicular
accident, a party involved therein filed a criminal case for reckless imprudence
resulting in damage to property against the other party, who, in turn, filed a civil
suit against the party instituting the criminal action, We held that the party filing
the separate civil action cannot be liable for forum shopping in the following
wise:chanRoblesvirtualLawlibrary
xxx However, there is no forum shopping in the instant case because the law and
the rules expressly allow the filing of a separate civil action which can proceed
independently of the criminal action.
Laroya filed the criminal case for reckless imprudence resulting in damage to
property based on the Revised Penal Code, while Casupanan and Capitulo filed the
civil action for damages based on Article 2176 of the Civil Code. Although these
two actions arose from the same act or omission, they have different causes of
action. The criminal case is based on culpa criminal punishable under the Revised
Penal Code, while the civil case is based on culpa aquiliana actionable under
Articles 2176 and 2177 of the Civil Code. These articles on culpa aquiliana
read:chanRoblesvirtualLawlibrary
"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.
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."
Any aggrieved person can invoke these articles provided he proves, by
preponderance of evidence, that he has suffered damage because of the fault or
negligence of another. Either the private complainant or the accused can file a
separate civil action under these articles. There is nothing in the law or rules that
state only the private complainant in a criminal case may invoke these articles.
Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal
Procedure ("2000 Rules" for brevity) expressly requires the accused to litigate his
counterclaim in a separate civil action, to wit:chanroblesvirtuallawlibrary
"SECTION 1. Institution of criminal and civil actions. - (a) x x x.
No counterclaim, cross-claim or third-party complaint may be filed by the accused in
the criminal case, but any cause of action which could have been the subject
thereof may be litigated in a separate civil action." (Italics supplied)
Since the present Rules require the accused in a criminal action to file his
counterclaim in a separate civil action, there can be no forum-shopping if the
accused files such separate civil action.
xxxx
The crucial question now is whether Casupanan and Capitulo, who are not the
offended parties in the criminal case, can file a separate civil action against the
offended party in the criminal case. Section 3, Rule 111 of the 2000 Rules provides
as follows:chanroblesvirtuallawlibrary
"SEC 3. When civil action may proceed independently. - In the cases provided in
Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent
civil action may be brought by the offended party. It shall proceed independently
of the criminal action and shall require only a preponderance of evidence. In no
case, however, may the offended party recover damages twice for the same act or
omission charged in the criminal action." (Italics supplied)
xxxx
There is no question that the offended party in the criminal action can file an
independent civil action for quasi-delict against the accused. Section 3 of the
12
present Rule 111 expressly states that the "offended party" may bring such an
action but the "offended party" may not recover damages twice for the same act or
omission charged in the criminal action. Clearly, Section 3 of Rule 111 refers to the
offended party in the criminal action, not to the accused.
Casupanan and Capitulo, however, invoke the ruling in Cabaero vs. Cantos12 where
the Court held that the accused therein could validly institute a separate civil action
for quasi-delict against the private complainant in the criminal case. In Cabaero,
the accused in the criminal case filed his Answer with Counterclaim for malicious
prosecution. At that time, the Court noted the "absence of clear-cut rules
governing the prosecution on impliedly instituted civil actions and the necessary
consequences and implications thereof." Thus, the Court ruled that the trial court
should confine itself to the criminal aspect of the case and disregard any
counterclaim for civil liability. The Court further ruled that the accused may file a
separate civil case against the offended party "after the criminal case is
terminated and/or in accordance with the new Rules which may be
promulgated." The Court explained that a cross-claim, counterclaim or third-party
complaint on the civil aspect will only unnecessarily complicate the proceedings
and delay the resolution of the criminal case.
Paragraph 6, Section 1 of the present Rule 111 was incorporated in the 2000 Rules
precisely to address the lacuna mentioned in Cabaero. Under this provision, the
accused is barred from filing a counterclaim, cross-claim or third-party complaint
in the criminal case. However, the same provision states that "any cause of action
which could have been the subject (of the counterclaim, cross-claim or third-
party complaint) may be litigated in a separate civil action." The present Rule 111
mandates the accused to file his counterclaim in a separate civil action which
shall proceed independently of the criminal action, even as the civil action of the
offended party is litigated in the criminal action.17chanrobleslaw
On the basis of the foregoing decision, therefore, petitioner, who is subrogated to
the rights of Cham, the accused in the criminal case instituted by respondents,
cannot be guilty of forum shopping for its separate civil action is expressly allowed
to proceed independently of the criminal action involved herein.
It must be noted, however, that notwithstanding the allowance of the instant
petition to proceed independently of the criminal action, the claims of petitioner
cannot be sustained in the absence of satisfactory evidence proving its right
thereto.
In civil cases, basic is the rule that the party making allegations has the burden of
proving them by a preponderance of evidence. He must rely on the strength of his
own evidence and not upon the weakness of the defense offered by his opponent.
This principle equally holds true, even if the defendant had not been given the
opportunity to present evidence because of a default order.18cralawlawlibrary
Preponderance of evidence is 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 the 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.19 The reason for this is that bare allegations,
unsubstantiated by evidence, are not equivalent to proof. Mere allegations,
therefore, cannot be deemed as evidence.20cralawlawlibrary
To prove the allegations in its complaint, herein petitioner presented testimonies
of its assured and its Assistant Vice-President, the Traffic Accident Investigation
Report, and documents evidencing the assured's insurance policy with petitioner as
well as the payment of repair expenses. As aptly ruled by the RTC and the CA,
however, the evidence presented by petitioner failed to preponderantly establish
negligence on the part of the respondents.
While petitioner may have proven the fact of its payment of the expenses for the
repair of Cham's vehicle through the testimony of its Assistant Vice-President and
other supporting receipts and documents, it fell short in proving that the damage
caused on said vehicle was due to the fault of the respondents.
As correctly held by the RTC and the CA, the Traffic Accident Investigation
Report21 cannot be given probative weight. Section 44 of Rule 130
provides:chanRoblesvirtualLawlibrary
SEC. 44. Entries in official records - Entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law are prima facie evidence of the
facts therein stated.
Moreover, for the Traffic Accident Investigation Report to be admissible as prima
facie evidence of the facts therein stated, the following requisites must be
present:chanRoblesvirtualLawlibrary
x x x (a) that the entry was made by a public officer or by another person specially
enjoined by law to do so; (b) that it was made by the public officer in the
performance of his duties, or by such other person in the performance of a duty
specially enjoined by law; and (c) that the public officer or other person had
13
sufficient knowledge of the facts by him stated, which must have been acquired by
him personally or through official information.22chanrobleslaw
Regrettably, in this case, petitioner failed to prove the third requisite cited above.
As correctly noted by the courts below, while the Traffic Accident Investigation
Report was exhibited as evidence, the investigating officer who prepared the same
was not presented in court to testify that he had sufficient knowledge of the facts
therein stated, and that he acquired them personally or through official
information.23 Neither was there any explanation as to why such officer was not
presented. We cannot simply assume, in the absence of proof, that the account of
the incident stated in the report was based on the personal knowledge of the
investigating officer who prepared it.
Thus, while petitioner presented its assured to testify on the events that transpired
during the vehicular collision, his lone testimony, unsupported by other
preponderant evidence, fails to sufficiently establish petitioner's claim that
respondents' negligence was, indeed, the proximate cause of the damage sustained
by Cham's vehicle.
It bears stressing, as the courts below have explained, that subrogation is
ultimately the substitution of one person in the place of another with reference to
a lawful claim or right, so that he who is substituted succeeds to the rights of the
other in relation to a debt or claim, including its remedies or securities. The rights
to which the subrogee succeeds are the same as, but not greater than, those of the
person for whom he is substituted, that is, he cannot acquire any claim, security or
remedy the subrogor did not have. In other words, a subrogee cannot succeed to a
right not possessed by the subrogor. A subrogee, in effect, steps into the shoes of
the insured and can recover only if the insured likewise could have
recovered.24cralawlawlibrary
Hence, before We can sustain petitioner's argument that its right to be reimbursed
for the repair is by operation of law upon mere proof of payment of the insurance
claim, a determination of the liability of respondents vis-a-viz the assured in the
vehicular collision must first be made, for petitioner cannot acquire any claim,
security or remedy its assured did not have. Considering, however, the insufficiency
of preponderant evidence attributing negligence on respondents resulting in the
damage sustained by the assured's vehicle, it will be unfair to hold respondents
liable for the same, payment by petitioner of its costs, notwithstanding.
WHEREFORE, premises considered, the instant petition is DENIED. The Decision
and Resolution, dated June 22, 2011 and January 16, 2012, respectively, of the
Court of Appeals in CA-G.R. SP No. 117785 are hereby AFFIRMED.
G.R. NO. 146224 January 26, 2007
VIRGINIA REAL, Petitioner,
vs.
SISENANDO H. BELO, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Revised
Rules of Court assailing the Resolution1 dated June 16, 2000 of the Court of Appeals
(CA) which dismissed outright the petition for review of Virginia Real (petitioner) in
CA-G.R. SP No. 58799, and the CA Resolution2 dated November 27, 2000 which
denied her Motion for Reconsideration.
The facts of the case:
Petitioner owned and operated the Wasabe Fastfood stall located at the Food
Center of the Philippine Women's University (PWU) along Taft Avenue, Malate,
Manila. Sisenando H. Belo (respondent) owned and operated the BS Masters
fastfood stall, also located at the Food Center of PWU.
Around 7:00 o'clock in the morning of January 25, 1996, a fire broke out at
petitioner's Wasabe Fastfood stall. The fire spread and gutted other fastfood stalls
in the area, including respondent's stall. An investigation on the cause of the fire by
Fire Investigator SFO1 Arnel C. Pinca (Pinca) revealed that the fire broke out due to
the leaking fumes coming from the Liquefied Petroleum Gas (LPG) stove and tank
installed at petitioner's stall. For the loss of his fastfood stall due to the fire,
respondent demanded compensation from petitioner. However, petitioner refused
to accede to respondent's demand.
Hence, respondent filed a complaint for damages against petitioner before the
Metropolitan Trial Court, Branch 24, Manila (MeTC), docketed as Civil Case No.
152822.3 Respondent alleged that petitioner failed to exercise due diligence in the
upkeep and maintenance of her cooking equipments, as well as the selection and
supervision of her employees; that petitioner's negligence was the proximate cause
of the fire that gutted the fastfood stalls.4
14
In her Answer dated September 23, 1996, petitioner denied liability on the grounds
that the fire was a fortuitous event and that she exercised due diligence in the
selection and supervision of her employees.5
After trial, the MeTC rendered its Decision6 dated April 5, 1999 in favor of the
respondent, the dispositive portion of which reads:
WHEREFORE, in light of the foregoing, judgment is hereby rendered in favor of the
plaintiff and against the defendant ordering the latter:
1) To pay the plaintiff the sum of P50,000.00 representing temperate or moderate
damages; and
2) To pay the plaintiff the sum of P25,000.00 as and for attorney's fees and
litigation expenses.
The counterclaim filed by the defendant is hereby DENIED FOR LACK OF MERIT.
SO ORDERED.7
The MeTC held that the investigation conducted by the appropriate authority
revealed that the fire broke out due to the leaking fumes coming from the LPG
stove and tank installed at petitioner's fastfood stall; that factual circumstances did
not show any sign of interference by any force of nature to infer that the fire
occurred due to fortuitous event; that the petitioner failed to exercise due
diligence, precaution, and vigilance in the conduct of her business, particularly, in
maintaining the safety of her cooking equipment as well as in the selection and
supervision of her employees; that even if petitioner passes the fault to her
employees, Article 2180 of the Civil Code finds application; that in the absence of
supporting evidence, the amount of actual damages and unrealized profits prayed
for by respondent cannot be granted; that, nonetheless, respondent is entitled to
temperate damages since respondent sustained pecuniary loss, though its true
value cannot, from the very nature of the case, be proved with certainty.
Dissatisfied, petitioner filed an appeal with the Regional Trial Court, Branch 43,
Manila (RTC), docketed as Civil Case No. 99-94606, insisting that the fire was a
fortuitous event. On November 26, 1999, the RTC affirmed the Decision of the
MeTC but increased the amount of temperate damages awarded to the respondent
from P50,000.00 to P80,000.00.8
Petitioner filed a Motion for Reconsideration contending that the increase in the
award of temperate damages is unreasonable since she also incurred losses from
the fire.
In its Order dated April 12, 2000, the RTC denied petitioner's Motion for
Reconsideration holding that it cannot disregard evidence showing that the fire
originated from petitioner's fastfood stall; that the increased amount of temperate
damages awarded to respondent is not a full compensation but only a fair
approximate of what he lost due to the negligence of petitioner's workers.9
Petitioner then filed a Petition for Review with the CA, docketed as CA-G.R. SP No.
58799.10 On June 16, 2000, the CA issued a Resolution dismissing the petition for
being "procedurally flawed/deficient."11 The CA held that the attached RTC
Decision was not certified as a true copy by the Clerk of Court; that a certified true
copy of the MeTC Decision was not attached; that material portions of the record,
such as the position papers of the parties and affidavits of witnesses, as would
support the material allegations of the petition were also not attached.12
On July 14, 2000, petitioner filed her Motion for Reconsideration,13 attaching
photocopies of the Decisions of the RTC and MeTC as certified correct by the Clerk
of Court.14
On November 27, 2000, the CA issued its Resolution denying petitioner's Motion
for Reconsideration.15
Hence, the present petition raising the following issues:
1. Whether the submitted certified true copy of the appealed decision of the
Regional Trial Court as authenticated by a court employee other than the Clerk of
Court who was not around at that time said copy was secured constitutes
compliance with the Rules?
2. Whether the submission of a certified true copy of the Metropolitan Trial Court's
judgment is still an indispensable requirement in filing a petition for review before
the Court of Appeals despite the fact that said judgment was already modified by
the above decision of the Regional Trial Court and it is the latter decision that is the
proper subject of the petition for review?
3. Whether the submission of copies of the respective position papers of the
contending parties is still an indispensable requirement in filing a petition for
review before the Court of Appeals despite the fact that the contents thereof are
already quoted in the body of the verified petition and in the subject judgment of
the Metropolitan Trial Court?
4. Whether the herein petitioner could be held liable for damages as a result of the
fire that razed not only her own food kiosk but also the adjacent foodstalls at the
Food Center premises of the Philippine Women's University, including that of the
respondent?
15
5. Whether the Regional Trial Court could increase the amount of damages
awarded by the Metropolitan Trial Court in favor of the respondent who has not
even filed an appeal therefrom?16
Petitioner submits that rules of procedure should not be applied in a very harsh,
inflexible and technically unreasonable sense.
While admitting that the RTC Decision and Order were not certified by the Clerk of
Court himself, petitioner insists that they were certified as authentic copies by
Administrative Officer IV Gregorio B. Paraon of the RTC.
As to the MeTC Decision, petitioner contends that the submission of a certified true
copy thereof is not an indispensable requirement because that judgment is not the
subject of the petition for review.
In any case, petitioner submits that she had substantially complied with the
requirements of the rule when she attached with her Motion for Reconsideration
the copies of the Decisions of the RTC and MeTC as certified correct by the Clerk of
Court.
Anent the non-submission of the position papers of the parties, petitioner
maintains that the contents of said position papers were lengthily quoted verbatim
in the petition and in the attached copy of the MeTC Decision.
On the submission of affidavits of witnesses, petitioner contends that it was not
necessary because the case before the MeTC was not covered by summary
proceedings.
On the merits of her petition before the CA, petitioner avers that she should not be
held liable for a fire which was a fortuitous event since the fire could not be
foreseen and the spread of the fire to the adjacent fastfood stalls was inevitable.
Lastly, she argues that the RTC cannot increase the amount of temperate damages
since the respondent did not appeal from the judgment of the MeTC.
Respondent opted not to file a Comment, manifesting that the petition contains no
new arguments which would require a comment since the arguments are but a
rehash of those raised and decided by the lower courts.17
The Court gave due course to the petition and required both parties to submit their
respective memoranda.18 In compliance therewith, petitioner submitted her
Memorandum.19 On the other hand, respondent filed a Manifestation stating that
since no new issues have been raised by the petitioner in her petition and in order
not to be redundant, he adopts as his memorandum the memoranda he filed in the
MeTC and the RTC.20
In his Memoranda before the MeTC and RTC, respondent emphasized the evidence
he presented to establish his cause of action against petitioner, principally the
testimony of Fire Investigator SFO1 Arnel G. Pinca stating that the fire originated
from the LPG stove and tank in petitioner's fastfood stall.
The requirements as to form and content of a petition for review of a decision of
the RTC are laid down in Section 2 of Rule 42 of the Revised Rules of Court, thus:
Sec. 2. Form and contents. - The petition shall be filed in seven (7) legible copies,
with the original copy intended for the court being indicated as such by the
petitioner, and shall (a) state the full names of the parties to the case, without
impleading the lower courts or judges thereof either as petitioners or respondents;
(b) indicate the specific material dates showing that it was filed on time; (c) set
forth concisely a statement of the matters involved, the issues raised, the
specification of errors of fact or law, or both, allegedly committed by the Regional
Trial Court, and the reasons or arguments relied upon for the allowance of the
appeal; (d) be accompanied by clearly legible duplicate originals or true copies of
the judgments or final orders of both lower courts, certified correct by the clerk of
court of the Regional Trial Court, the requisite number of plain copies thereof and
of the pleadings and other material portions of the record as would support the
allegations of the petition. (Emphasis supplied)
xxxx
Under Section 3 of the same Rule, failure to comply with the above requirements
"shall be sufficient ground for the dismissal thereof."
However, Section 6, Rule 1 of the Revised Rules of Court also provides that rules
shall be liberally construed in order to promote their objective of securing a just,
speedy and inexpensive disposition of every action and proceeding. Indeed, rules of
procedure should be used to promote, not frustrate justice.21
In the present case, petitioner's submission of copies of the RTC Decision and Order
certified as correct by the Administrative Officer IV of the RTC is insufficient
compliance with the requirements of the rule. Petitioner failed to show that the
Clerk of Court was officially on leave and the Administrative Officer was officially
designated as officer-in-charge. The rule is explicit in its mandate that the legible
duplicate originals or true copies of the judgments or final orders of both lower
courts must be certified correct by the Clerk of Court.
Nonetheless, a strict application of the rule in this case is not called for. This Court
has ruled against the dismissal of appeals based solely on technicalities in several
cases, especially when the appellant had substantially complied with the formal
requirements.22 There is ample jurisprudence holding that the subsequent and
16
substantial compliance of a party may call for the relaxation of the rules of
procedure.23 When the CA dismisses a petition outright and the petitioner files a
motion for the reconsideration of such dismissal, appending thereto the requisite
pleadings, documents or order/resolution, this would constitute substantial
compliance with the Revised Rules of Court.24
Thus, in the present case, there was substantial compliance when petitioner
attached in her Motion for Reconsideration a photocopy of the Decision of the RTC
as certified correct by the Clerk of Court of the RTC. In like manner, there was
substantial compliance when petitioner attached, in her Motion for
Reconsideration, a photocopy of the Decision of the MeTC as certified correct by
the Clerk of Court of the RTC.
On the necessity of attaching position papers and affidavits of witnesses, Section 2
of Rule 42 of the Revised Rules of Court requires attachments if these would
support the allegations of the petition.25 In the present case, there was no
compelling need to attach the position papers of the parties since the Decisions of
the MeTC and RTC already stated their respective arguments. As to the affidavits,
the Court notes that they were presented by the respondent as part of the
testimony of his witness Fire Investigator Pinca and therefore would not support
the allegations of the petitioner.
Truly, in dismissing the petition for review, the CA had committed grave abuse of
discretion amounting to lack of jurisdiction in putting a premium on technicalities
at the expense of a just resolution of the case.
The Court's pronouncement in Republic of the Philippines v. Court of Appeals26 is
worth echoing: "cases should be determined on the merits, after full opportunity to
all parties for ventilation of their causes and defenses, rather than on technicality
or some procedural imperfections. In that way, the ends of justice would be better
served."27 Thus, what should guide judicial action is that a party litigant is given the
fullest opportunity to establish the merits of his action or defense rather than for
him to lose life, honor or property on mere technicalities.28
The next most logical step would then be for the Court to simply set aside the
challenged resolutions, remand the case to the CA and direct the latter to resolve
on the merits of the petition in CA-G.R. SP No. 58799. But, that would further delay
the case. Considering the issues raised which can be resolved on the basis of the
pleadings and documents filed, and the fact that petitioner herself has asked the
Court to decide her petition on the merits, the Court deems it more practical and in
the greater interest of justice not to remand the case to the CA but, instead, to
resolve the controversy once and for all.29
The Court shall now address the issue of whether the fire was a fortuitous event.
Jurisprudence defines the elements of a "fortuitous event" as follows: (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. 30
Article 1174 of the Civil Code provides that no person shall be responsible for a
fortuitous event which could not be foreseen, or which, though foreseen, was
inevitable. In other words, there must be an entire exclusion of human agency from
the cause of injury or loss.31
It is established by evidence that the fire originated from leaking fumes from the
LPG stove and tank installed at petitioner's fastfood stall and her employees failed
to prevent the fire from spreading and destroying the other fastfood stalls,
including respondent's fastfood stall. Such circumstances do not support
petitioner's theory of fortuitous event.
Petitioner's bare allegation is far from sufficient proof for the Court to rule in her
favor. It is basic in the rule of evidence that bare allegations, unsubstantiated by
evidence, are not equivalent to proof.32 In short, mere allegations are not
evidence.33
The Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done. x x x
Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's
own acts or omissions, but also for those of persons for whom one is responsible.
xxxx
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the branches
in which the latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though the
former are not engaged in any business or industry.
xxxx
17
The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.
Whenever an employee's negligence causes damage or injury to another, there
instantly arises a presumption juris tantum that the employer failed to
exercise diligentissimi patris families in the selection (culpa in eligiendo) or
supervision (culpa in vigilando) of its employees.34 To avoid liability for a quasi-
delict committed by his employee, an employer must overcome the presumption
by presenting convincing proof that he exercised the care and diligence of a good
father of a family in the selection and supervision of his employee. 35
In this case, petitioner not only failed to show that she submitted proof that the
LPG stove and tank in her fastfood stall were maintained in good condition and
periodically checked for defects but she also failed to submit proof that she
exercised the diligence of a good father of a family in the selection and supervision
of her employees. For failing to prove care and diligence in the maintenance of her
cooking equipment and in the selection and supervision of her employees, the
necessary inference was that petitioner had been negligent. 36
As to the award of temperate damages, the increase in the amount thereof by the
RTC is improper. The RTC could no longer examine the amounts awarded by the
MeTC since respondent did not appeal from the Decision of the MeTC.37 It is well-
settled that a party who does not appeal from the decision may not obtain any
affirmative relief from the appellate court other than what he has obtained from
the lower court, if any, whose decision is brought up on appeal.38 While there are
exceptions to this rule, such as if they involve (1) errors affecting the lower court's
jurisdiction over the subject matter, (2) plain errors not specified, and (3) clerical
errors,39 none apply here.
WHEREFORE, the petition is GRANTED. The assailed Resolutions dated June 16,
2000 and November 27, 2000 of the Court of Appeals
are REVERSED and SET ASIDE. The Decision dated November 26, 1999 of the
Regional Trial Court, Branch 43, Manila is AFFIRMED with MODIFICATION that the
temperate damages awarded is reduced from P80,000.00 to P50,000.00 as
awarded by the Metropolitan Trial Court, Branch 24, Manila in its Decision dated
April 5, 1999.
No costs.
SO ORDERED.
SOUTHEASTERN COLLEGE, INC., petitioner, vs. COURT OF APPEALS, JUANITA DE
JESUS VDA. DE DIMAANO, EMERITA DIMAANO, REMEDIOS DIMAANO,
CONSOLACION DIMAANO and MILAGROS DIMAANO, respondents.
DECISION
PURISIMA, J.:
Petition for review under Rule 45 of the Rules of Court seeking to set aside the
Decision[1] promulgated on July 31, 1996, and Resolution[2] dated September 12,
1996 of the Court of Appeals[3] in CA-G.R. No. 41422, entitled Juanita de Jesus vda.
de Dimaano, et al. vs. Southeastern College, Inc., which reduced the moral
damages awarded below from P1,000,000.00 to P200,000.00.[4] The Resolution
under attack denied petitioners motion for reconsideration.
Private respondents are owners of a house at 326 College Road, Pasay City, while
petitioner owns a four-storey school building along the same College Road. On
October 11, 1989, at about 6:30 in the morning, a powerful typhoon Saling hit
Metro Manila. Buffeted by very strong winds, the roof of petitioners building was
partly ripped off and blown away, landing on and destroying portions of the roofing
of private respondents house. After the typhoon had passed, an ocular inspection
of the destroyed buildings was conducted by a team of engineers headed by the
city building official, Engr. Jesus L. Reyna. Pertinent aspects of the latters
Report[5] dated October 18, 1989 stated, as follows:
5. One of the factors that may have led to this calamitous event is the formation of
the buildings in the area and the general direction of the wind. Situated in the
peripheral lot is an almost U-shaped formation of 4-storey building. Thus, with the
strong winds having a westerly direction, the general formation of the buildings
becomes a big funnel-like structure, the one situated along College Road, receiving
the heaviest impact of the strong winds. Hence, there are portions of the roofing,
those located on both ends of the building, which remained intact after the storm.
6. Another factor and perhaps the most likely reason for the dislodging of the
roofings structural trusses is the improper anchorage of the said trusses to the roof
beams. The 1/2 diameter steel bars embedded on the concrete roof beams which
serve as truss anchorage are not bolted nor nailed to the trusses. Still, there are
other steel bars which were not even bent to the trusses, thus, those trusses are not
anchored at all to the roof beams.
It then recommended that to avoid any further loss and damage to lives, limbs and
property of persons living in the vicinity, the fourth floor of subject school building
be declared as a structural hazard.
In their Complaint[6] before the Regional Trial Court of Pasay City, Branch 117, for
damages based on culpa aquiliana, private respondents alleged that the damage to
their house rendered the same uninhabitable, forcing them to stay temporarily in
others houses. And so they sought to recover from petitioner P117,116.00, as
actual damages, P1,000,000.00, as moral damages, P300,000.00, as exemplary
damages and P100,000.00, for and as attorneys fees; plus costs.
In its Answer, petitioner averred that subject school building had withstood several
devastating typhoons and other calamities in the past, without its roofing or any
portion thereof giving way; that it has not been remiss in its responsibility to see to
it that said school building, which houses school children, faculty members, and
employees, is in tip-top condition; and furthermore, typhoon Saling was an act of
God and therefore beyond human control such that petitioner cannot be
answerable for the damages wrought thereby, absent any negligence on its part.
The trial court, giving credence to the ocular inspection report to the effect that
subject school building had a defective roofing structure, found that, while typhoon
Saling was accompanied by strong winds, the damage to private respondents house
could have been avoided if the construction of the roof of [petitioners] building
was not faulty. The dispositive portion of the lower courts decision[7] reads thus:
WHEREFORE, in view of the foregoing, the Court renders judgment (sic) in favor of
the plaintiff (sic) and against the defendants, (sic) ordering the latter to pay jointly
and severally the former as follows:
a) P117,116.00, as actual damages, plus litigation expenses;
b) P1,000,000.00 as moral damages;
c) P100,000.00 as attorneys fees;
d) Costs of the instant suit.
The claim for exemplary damages is denied for the reason that the defendants (sic)
did not act in a wanton fraudulent, reckless, oppressive or malevolent manner.
In its appeal to the Court of Appeals, petitioner assigned as errors,[8] that:
I
THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON SALING, AS AN ACT OF GOD,
IS NOT THE SOLE AND ABSOLUTE REASON FOR THE RIPPING-OFF OF THE SMALL
PORTION OF THE ROOF OF SOUTHEASTERNS FOUR (4) STOREY SCHOOL BUILDING.
II

18
THE TRIAL COURT ERRED IN HOLDING THAT THE CONSTRUCTION OF THE ROOF OF
DEFENDANTS SCHOOL BUILDING WAS FAULTY NOTWITHSTANDING THE
ADMISSION THAT THERE WERE TYPHOONS BEFORE BUT NOT AS GRAVE AS
TYPHOON SALING WHICH IS THE DIRECT AND PROXIMATE CAUSE OF THE
INCIDENT.
III
THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES AS WELL
AS ATTORNEYS FEES AND LITIGATION EXPENSES AND COSTS OF SUIT TO DIMAANOS
WHEN THEY HAVE NOT INCURRED ACTUAL DAMAGES AT ALL AS DIMAANOS HAVE
ALREADY SOLD THEIR PROPERTY, AN INTERVENING EVENT THAT RENDERS THIS
CASE MOOT AND ACADEMIC.
IV
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF EXECUTION
INSPITE OF THE PERFECTION OF SOUTHEASTERNS APPEAL WHEN THERE IS NO
COMPELLING REASON FOR THE ISSUANCE THERETO.
As mentioned earlier, respondent Court of Appeals affirmed with modification the
trial courts disposition by reducing the award of moral damages
from P1,000,000.00 to P200,000.00.Hence, petitioners resort to this Court, raising
for resolution the issues of:
1. Whether or not the award of actual damage [sic] to respondent Dimaanos on the
basis of speculation or conjecture, without proof or receipts of actual
damage, [sic] legally feasible or justified.
2. Whether or not the award of moral damages to respondent Dimaanos, without
the latter having suffered, actual damage has legal basis.
3. Whether or not respondent Dimaanos who are no longer the owner of the
property, subject matter of the case, during its pendency, has the right to pursue
their complaint against petitioner when the case was already rendered moot and
academic by the sale of the property to third party.
4. Whether or not the award of attorneys fees when the case was already moot
and academic [sic] legally justified.
5. Whether or not petitioner is liable for damage caused to others by typhoon
Saling being an act of God.
6. Whether or not the issuance of a writ of execution pending appeal, ex-parte or
without hearing, has support in law.
19
The pivot of inquiry here, determinative of the other issues, is whether the damage
on the roof of the building of private respondents resulting from the impact of the
falling portions of the school buildings roof ripped off by the strong winds of
typhoon Saling, was, within legal contemplation, due to fortuitous event? If so,
petitioner cannot be held liable for the damages suffered by the private
respondents. This conclusion finds support in Article 1174 of the Civil Code,
which provides:
Art 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.
The antecedent of fortuitous event or caso fortuito is found in the Partidas which
defines it as an event which takes place by accident and could not have been
foreseen.[9] Escriche elaborates it as an unexpected event or act of God which could
neither be foreseen nor resisted.[10] Civilist Arturo M. Tolentino adds that
[f]ortuitous events may be produced by two general causes: (1) by nature, such as
earthquakes, storms, floods, epidemics, fires, etc. and (2) by the act of man, such as
an armed invasion, attack by bandits, governmental prohibitions, robbery, etc.[11]
In order that a fortuitous event may exempt a person from liability, it is necessary
that he be free from any previous negligence or misconduct by reason of which the
loss may have been occasioned.[12] An act of God cannot be invoked for the
protection of a person who has been guilty of gross negligence in not trying to
forestall its possible adverse consequences. When a persons negligence concurs
with an act of God in producing damage or injury to another, such person is not
exempt from liability by showing that the immediate or proximate cause of the
damage or injury was a fortuitous event. When the effect is found to be partly the
result of the participation of man whether it be from active intervention, or
neglect, or failure to act the whole occurrence is hereby humanized, and removed
from the rules applicable to acts of God.[13]
In the case under consideration, the lower court accorded full credence to the
finding of the investigating team that subject school buildings roofing had no
sufficient anchorage to hold it in position especially when battered by strong
winds. Based on such finding, the trial court imputed negligence to petitioner and
adjudged it liable for damages to private respondents.
After a thorough study and evaluation of the evidence on record, this Court
believes otherwise, notwithstanding the general rule that factual findings by the
trial court, especially when affirmed by the appellate court, are binding and
conclusive upon this Court.[14] After a careful scrutiny of the records and the
pleadings submitted by the parties, we find exception to this rule and hold that the
lower courts misappreciated the evidence proffered.
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.[15] 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.[16] In other words, the person seeking
exoneration from liability must not be guilty of negligence. Negligence, as
commonly understood, is conduct which naturally or reasonably creates undue risk
or harm to others. It may be the failure to observe that degree of care, precaution,
and vigilance which the circumstances justly demand,[17] or the omission to do
something which a prudent and reasonable man, guided by considerations which
ordinarily regulate the conduct of human affairs, would do.[18] From these
premises, we proceed to determine whether petitioner was negligent, such that if
it were not, the damage caused to private respondents house could have been
avoided?
At the outset, it bears emphasizing that a person claiming damages for the
negligence of another has the burden of proving the existence of fault or
negligence causative of his injury or loss.The facts constitutive of negligence must
be affirmatively established by competent evidence,[19] not merely by
presumptions and conclusions without basis in fact. Private respondents, in
establishing the culpability of petitioner, merely relied on the aforementioned
report submitted by a team which made an ocular inspection of petitioners school
building after the typhoon. As the term imparts, an ocular inspection is one by
means of actual sight or viewing.[20] What is visual to the eye though, is not always
reflective of the real cause behind. For instance, one who hears a gunshot and then
sees a wounded person, cannot always definitely conclude that a third person shot
the victim. It could have been self-inflicted or caused accidentally by a stray
bullet. The relationship of cause and effect must be clearly shown.
In the present case, other than the said ocular inspection, no investigation was
conducted to determine the real cause of the partial unroofing of petitioners
school building. Private respondents did not even show that the plans,
specifications and design of said school building were deficient and
defective. Neither did they prove any substantial deviation from the approved
plans and specifications. Nor did they conclusively establish that the construction of
such building was basically flawed.[21]
On the other hand, petitioner elicited from one of the witnesses of private
respondents, city building official Jesus Reyna, that the original plans and design of
petitioners school building were approved prior to its construction. Engr. Reyna
20
admitted that it was a legal requirement before the construction of any building to
obtain a permit from the city building official (city engineer, prior to the passage of
the Building Act of 1977). In like manner, after construction of the building, a
certification must be secured from the same official attesting to the readiness for
occupancy of the edifice. Having obtained both building permit and certificate of
occupancy, these are, at the very least, prima facie evidence of the regular and
proper construction of subject school building.[22]
Furthermore, when part of its roof needed repairs of the damage inflicted by
typhoon Saling, the same city official gave the go-signal for such repairs without
any deviation from the original design and subsequently, authorized the use of the
entire fourth floor of the same building. These only prove that subject building
suffers from no structural defect, contrary to the report that its U-shaped form was
structurally defective. Having given his unqualified imprimatur, the city building
official is presumed to have properly performed his duties[23] in connection
therewith.
In addition, petitioner presented its vice president for finance and administration
who testified that an annual maintenance inspection and repair of subject school
building were regularly undertaken. Petitioner was even willing to present its
maintenance supervisor to attest to the extent of such regular inspection but
private respondents agreed to dispense with his testimony and simply stipulated
that it would be corroborative of the vice presidents narration.
Moreover, the city building official, who has been in the city government service
since 1974, admitted in open court that no complaint regarding any defect on the
same structure has ever been lodged before his office prior to the institution of the
case at bench. It is a matter of judicial notice that typhoons are common
occurrences in this country. If subject school buildings roofing was not firmly
anchored to its trusses, obviously, it could not have withstood long years and
several typhoons even stronger than Saling.
In light of the foregoing, we find no clear and convincing evidence to sustain the
judgment of the appellate court. We thus hold that petitioner has not been shown
negligent or at fault regarding the construction and maintenance of its school
building in question and that typhoon Saling was the proximate cause of the
damage suffered by private respondents house.
With this disposition on the pivotal issue, private respondents claim for actual and
moral damages as well as attorneys fees must fail.[24] Petitioner cannot be made to
answer for a purely fortuitous event.[25] More so because no bad faith or willful act
to cause damage was alleged and proven to warrant moral damages.
Private respondents failed to adduce adequate and competent proof of the
pecuniary loss they actually incurred.[26] It is not enough that the damage be
capable of proof but must be actually proved with a reasonable degree of certainty,
pointing out specific facts that afford a basis for measuring whatever compensatory
damages are borne.[27] Private respondents merely submitted an estimated amount
needed for the repair of the roof of their subject building. What is more, whether
the necessary repairs were caused ONLY by petitioners alleged negligence in the
maintenance of its school building, or included the ordinary wear and tear of the
house itself, is an essential question that remains indeterminable.
The Court deems unnecessary to resolve the other issues posed by petitioner.
As regards the sixth issue, however, the writ of execution issued on April 1, 1993 by
the trial court is hereby nullified and set aside. Private respondents are ordered to
reimburse any amount or return to petitioner any property which they may have
received by virtue of the enforcement of said writ.
WHEREFORE, the petition is GRANTED and the challenged Decision is
REVERSED. The complaint of private respondents in Civil Case No. 7314 before the
trial court a quo is ordered DISMISSED and the writ of execution issued on April 1,
1993 in said case is SET ASIDE. Accordingly, private respondents are ORDERED to
return to petitioner any amount or property received by them by virtue of said
writ. Costs against the private respondents.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero, and Kapunan, JJ., concur.
PERLA COMPANIA V SPOUSES SARANGAYA
DECISION
CORONA, J.:
21
This is an appeal by certiorari under Rule 45 of the 1997 Rules of Civil Procedure
seeking to annul the decisions of the Court of Appeals (CA) dated June 29, 2000 and
March 31, 2001, respectively, which affirmed the decision of the Regional Trial
Court (RTC), Branch 21 of Santiago, Isabela.
In 1986, respondent spouses Gaudencio Sarangaya III and Primitiva Sarangaya
erected a semi-concrete, semi-narra, one-storey commercial building fronting the
provincial road of Santiago, Isabela. The building was known as Super A Building
and was subdivided into three doors, each of which was leased out. The two-storey
residence of the Sarangayas was behind the second and third doors of the building.
On the left side of the commercial building stood the office of the Matsushita
Electric Philippine Corporation (Matsushita).
In 1988, petitioner Perla Compania de Seguros, Inc. (petitioner-corporation),
through its branch manager and co-petitioner Bienvenido Pascual, entered into a
contract of lease of the first door of the Super A Building, abutting the office of
Matsushita. Petitioner-corporation renovated its rented space and divided it into
two. The left side was converted into an office while the right was used by Pascual
as a garage for a 1981 model 4-door Ford Cortina, a company-provided vehicle he
used in covering the different towns within his area of supervision.
On July 7, 1988, Pascual left for San Fernando, Pampanga but did not bring the car
with him. Three days later, he returned to Santiago and, after checking his
appointments the next day, decided to warm up the car. When he pulled up the
handbrake and switched on the ignition key, the engine made an odd sound and
did not start. Thinking it was just the gasoline percolating into the engine, he again
stepped on the accelerator and started the car. This revved the engine but
petitioner again heard an unusual sound. He then saw a small flame coming out of
the engine. Startled, he turned it off, alighted from the vehicle and started to push
it out of the garage when suddenly, fire spewed out of its rear compartment and
engulfed the whole garage. Pascual was trapped inside and suffered burns on his
face, legs and arms.
Meanwhile, respondents were busy watching television when they heard two loud
explosions. The smell of gasoline permeated the air and, in no time, fire spread
inside their house, destroying all their belongings, furniture and appliances.

The city fire marshall conducted an investigation and thereafter submitted a report
to the provincial fire marshall. He concluded that the fire was accidental. The
report also disclosed that petitioner-corporation had no fire permit as required by
law.
Based on the same report, a criminal complaint for Reckless Imprudence Resulting
to (sic) Damage in (sic) Property[1] was filed against petitioner Pascual. On the other
hand, petitioner-corporation was asked to pay the amount of P7,992,350, inclusive
of the value of the commercial building. At the prosecutors office, petitioner
Pascual moved for the withdrawal of the complaint, which was granted.
Respondents later on filed a civil complaint based on quasi-delict against
petitioners for a sum of money and damages, alleging that Pascual acted with gross
negligence while petitioner-corporation lacked the required diligence in the
selection and supervision of Pascual as its employee. They prayed for payment of
the following damages:
1. P2,070,000.00 - representing the value of the 2-storey
residential building and the 3-door apartment;
2. P5,922,350.00 - representing the value of the jewelries,
appliances, [furniture], fixtures and cash;
3. P8,300.00 a month for [lost rental] income from July 1995 until
such time that the premises is restored to its former condition or payment for its
value, whichever comes first;
4. P2,000,000.00 for moral damages;
5. P1,000,000.00 for exemplary damages, and
22
6. Attorneys fees equivalent to 15% of the total amount to be
awarded to the plaintiffs.[2]
During the trial, respondents presented witnesses who testified that a few days
before the incident, Pascual was seen buying gasoline in a container from a nearby
gas station. He then placed the container in the rear compartment of the car.
In his answer, Pascual insisted that the fire was purely an accident, a caso fortuito,
hence, he was not liable for damages. He also denied putting a container of
gasoline in the cars rear compartment. For its part, petitioner-corporation refused
liability for the accident on the ground that it exercised due diligence of a good
father of a family in the selection and supervision of Pascual as its branch manager.
After the trial, the court a quo ruled in favor of respondents. The decretal portion
of the decision read:
WHEREFORE, in the light of the foregoing considerations judgment is hereby
rendered ORDERING the defendants, Bienvenido Pascual and Perla Compania de
Seguros, Inc. to pay jointly and solidarily to the plaintiffs spouses Gaudencio and
Primitiva Sarangaya the total sum of Two Million Nine Hundred Four Thousand
Eight Hundred and Eighty Pesos ([P]2,904,880.00) as actual damages with legal
interest thereon from December 12, 1995 until fully paid.[3] (emphasis supplied)
The court a quo declared that, although the respondents failed to prove the precise
cause of the fire that engulfed the garage, Pascual was nevertheless negligent
based on the doctrine of res ipsa loquitur.[4] It did not, however, categorically rule
that the gasoline container allegedly placed in the rear compartment of the car
caused the fire. The trial court instead declared that both petitioners failed to
adduce sufficient evidence to prove that they employed the necessary care and
diligence in the upkeep of the car.[5] Contrary to the claims of petitioner-
corporation, the trial court also found that it failed to employ the diligence of a
good father of a family, as required by law, in the selection and supervision of
Pascual.
With respect to the amount of damages, the trial court awarded to respondents no amount ofP600,000.00 by way of nominal damages under Articles 2222 and 2223
more than their claim for actual damages covering the cost of the 2-storey of the New Civil Code, with interest thereon, at the rate of 6% per annum from the
residential building and the commercial building, including their personal date of the Decision of this Court.[7]
properties. It explained:

According to the plaintiff Gaudencio Sarangaya III, he made a list of what was lost.
His list includes the commercial building that was burned which he valued
at P2,070,000.00. The defendants take exception to the value given by the plaintiff
The appellate court was in accord with the trial courts findings that the doctrine
and for this purpose they submitted the tax declaration of the building which states
of res ipsa loquitur was correctly applied in determining the liability of Pascual and
that the market value is P183,770.00. The Court takes judicial notice that the
that petitioner-corporation, as the employer, was vicariously liable to respondents.
valuation appearing on the tax declaration of property is always lower [than] the
Nonetheless, for respondents failure to substantiate their actual loss, the appellate
correct value thereof. Considering that the building that was burned was a two-
court granted nominal damages of P600,000 to them.
storey residential house with a commercial building annex with a total floor area of
241 square meters as stated in the tax declaration, mostly concrete mixed with
narra and other lumber materials, the value given by the plaintiffs of P2,070,000.00
is reasonable and credible and it shall be awarded to the plaintiffs. Petitioners and respondents filed their respective motions for reconsideration.

The other items listed are assorted [furniture] and fixtures totaling P307,000.00
assorted appliances worth P358,350.00; two filing cabinets worth P7,000.00 and
clothing and other personal effects costing P350,000.00, household utensils
costing P15,000.00. The Court finds them reasonable and credible considering the
social and financial stature of the plaintiffs who are businessmen. There could be
no question that they were able to acquire and own quite a lot of home furnishings
and personal belongings. The costing however is high considering that these
belongings were already used for quite some time so a 20% depreciation should be
equitably deducted from the cost of acquisition submitted by plaintiffs. Thus, the
total amount recoverable would be P1,037,350.00 less 20% or a total
of P829,880.00. The P5,000.00 representing foodstock can also be ordered paid to
the plaintiffs. x x x.[6]
In their MR, petitioners contested the findings of fact of the appellate court. They
denied any liability whatsoever to respondents but this was rejected by the CA for
lack of merit. Thus, the present appeal.
Respondents, on the other hand, argued in their MR that the award of nominal
damages was erroneous. They prayed that, in lieu of the award of nominal
damages, the case should instead be remanded to the trial court for reception of
additional evidence on their claim for actual damages. The CA granted respondents
MR. Hence they did not appeal the CAs decision to us. According to the CA:

Anent Plaintiffs-Appellees plea that, in lieu of the Courts award of nominal

damages, the case be remanded to the Court a quo, in the interest of justice, to
On appeal to the Court of Appeals, the appellate court again ruled in favor of enable them to adduce evidence to prove their claim for actual damages, we find
respondents but modified the amount of damages awarded by the trial court. It the same meritorious.
held:

Accordingly, the Decision of the Court is hereby amended to read as follows:

x x x the Decision of the Court a quo is AFFIRMED, with the modification that the
Appellants are hereby ordered to pay the Appellees, jointly and severally, the total

23
IN THE LIGHT OF ALL THE FOREGOING, the Decision of the Court a quo appealed
from is AFFIRMED. The award of nominal damages is set aside. Let the records be
remanded to the Court a quo for the reception of additional evidence by the
Plaintiffs-Appellees and the Defendants-Appellants anent Plaintiffs-Appellees
claim for actual damages.[8] (emphasis supplied)
Via this petition, petitioners ascribe the following errors to the appellate court:
(a) THE COURT OF APPEALS ERRED IN APPLYING THE DOCTRINE OF [RES IPSA
LOQUITUR] IN THE PRESENT CASE;
(b) THE COURT OF APPEALS ERRED WHEN IT FOUND PERLA NEGLIGENT IN THE
SUPERVISION OF PASCUAL, AND CONSEQUENTLY, VICARIOUSLY LIABLE FOR THE
FIRE BECAUSE PERLA FAILED TO ADDUCE EVIDENCE OF SUPERVISION OF
EMPLOYEES CARE AND UPKEEP OF COMPANY VEHICLES REQUIRED BY THE
SUPREME COURT ON TRANSPORTATION COMPANIES; AND
(c) THE COURT OF APPEALS ERRED WHEN IT ORDERED THE REMAND OF THE CASE
TO RTC ISABELA FOR RECEPTION OF ADDITIONAL EVIDENCE BY THE SARANGAYA
SPOUSES ON THEIR CLAIM FOR ACTUAL DAMAGES.[9]
Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction
speaks for itself.[10] It relates to the fact of an injury that sets out an inference to
the cause thereof or establishes the plaintiffs prima facie case.[11] The doctrine rests
on inference and not on presumption.[12] The facts of the occurrence warrant the
supposition of negligence and they furnish circumstantial evidence of negligence
when direct evidence is lacking.[13]
24
The doctrine is based on the theory that the defendant either knows the cause of
the accident or has the best opportunity of ascertaining it and the plaintiff, having
no knowledge thereof, is compelled to allege negligence in general terms.[14] In
such instance, the plaintiff relies on proof of the happening of the accident alone to
establish negligence.[15]
The doctrine provides a means by which a plaintiff can pin liability on a defendant
who, if innocent, should be able to explain the care he exercised to prevent the
incident complained of. Thus, it is the defendants responsibility to show that there
was no negligence on his part.[16]
To sustain the allegation of negligence based on the doctrine of res ipsa loquitur,
the following requisites must concur:
1) the accident is of a kind which does not ordinarily occur unless
someone is negligent;
2) the cause of the injury was under the exclusive control of the
person in charge and
3) the injury suffered must not have been due to any voluntary
action or contribution on the part of the person injured. [17]
Under the first requisite, the occurrence must be one that does not ordinarily occur
unless there is negligence. Ordinary refers to the usual course of events. [18] Flames
spewing out of a car engine, when it is switched on, is obviously not a normal
event. Neither does an explosion usually occur when a car engine is revved. Hence,
in this case, without any direct evidence as to the cause of the accident, the
doctrine of res ipsa loquitur comes into play and, from it, we draw the inference
that based on the evidence at hand, someone was in fact negligent and responsible
for the accident.

The test to determine the existence of negligence in a particular case may be stated
as follows: did the defendant in committing the alleged negligent act, use
reasonable care and caution which an ordinarily prudent person in the same
situation would have employed?[19] If not, then he is guilty of negligence.
Here, the fact that Pascual, as the caretaker of the car, failed to submit any proof
that he had it periodically checked (as its year-model and condition required)
revealed his negligence. A prudent man should have known that a 14-year-old car,
constantly used in provincial trips, was definitely prone to damage and other
defects. For failing to prove care and diligence in the maintenance of the vehicle,
the necessary inference was that Pascual had been negligent in the upkeep of the
car.
Pascual attempted to exculpate himself from liability by insisting that the incident
was a caso fortuito. We disagree.
The exempting circumstance of caso fortuito may be availed only when: (a) the
cause of the unforeseen and unexpected occurrence was independent of the
human will; (b) it was impossible to foresee the event which constituted the caso
fortuito or, if it could be foreseen, it was impossible to avoid; (c) the occurrence
must be such as to render it impossible to perform an obligation in a normal
manner and (d) the person tasked to perform the obligation must not have
participated in any course of conduct that aggravated the accident.[20]
In fine, human agency must be entirely excluded as the proximate cause or
contributory cause of the injury or loss.[21] 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.[22]
The circumstances on record do not support the defense of Pascual. Clearly, there
was no caso fortuito because of his want of care and prudence in maintaining the
car.
25
Under the second requisite, the instrumentality or agency that triggered the
occurrence must be one that falls under the exclusive control of the person in
charge thereof. In this case, the car where the fire originated was under the control
of Pascual. Being its caretaker, he alone had the responsibility to maintain it and
ensure its proper functioning. No other person, not even the respondents, was
charged with that obligation except him.
Where the circumstances which caused the accident are shown to have been under
the management or control of a certain person and, in the normal course of events,
the incident would not have happened had that person used proper care, the
inference is that it occurred because of lack of such care.[23] The burden of evidence
is thus shifted to defendant to establish that he observed all that was necessary to
prevent the accident from happening. In this aspect, Pascual utterly failed.
Under the third requisite, there is nothing in the records to show that respondents
contributed to the incident. They had no access to the car and had no responsibility
regarding its maintenance even if it was parked in a building they owned.
On the second assigned error, we find no reason to reverse the decision of the
Court of Appeals. The relationship between the two petitioners was based on the
principle of pater familias according to which the employer becomes liable to the
party aggrieved by its employee if he fails to prove due diligence of a good father of
a family in the selection and supervision of his employees.[24] The burden of proof
that such diligence was observed devolves on the employer who formulated the
rules and procedures for the selection and hiring of his employees.
In the selection of prospective employees, employers are required to examine
them as to their qualifications, experience and service records.[25] While the
petitioner-corporation does not appear to have erred in considering Pascual for his
position, its lack of supervision over him made it jointly and solidarily liable for the
fire.
In the supervision of employees, the employer must formulate standard operating
procedures, monitor their implementation and impose disciplinary measures for
the breach thereof.[26] To fend off vicarious liability, employers must submit
concrete proof, including documentary evidence, that they complied with
everything that was incumbent on them.[27] Here, petitioner-corporations evidence
hardly included any rule or regulation that Pascual should have observed in
performing his functions. It also did not have any guidelines for the maintenance
and upkeep of company property like the vehicle that caught fire. Petitioner-
corporation did not require periodic reports on or inventories of its properties
either. Based on these circumstances, petitioner-corporation clearly did not exert
effort to be apprised of the condition of Pascuals car or its serviceability.
Petitioner-corporations argument that the liability attached to employers only
applies in cases involving the supervision of employees in the transportation
business is incorrect. Article 2180 of the Civil Code states that employers shall be
liable for the damage caused by their employees. The liability is imposed on all
those who by their industry, profession or other enterprise have other persons in
their service or supervision.[28] Nowhere does it state that the liability is limited to
employers in the transportation business.
G.R. No. L-53401 November 6, 1989
THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,
vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN
YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA
JUAN, respondents.
Herman D. Coloma for petitioner.
Glicerio S. Ferrer for private respondents.
PARAS, J.:
Sought to be reversed in this petition is the Decision * of the respondent Court of
Appeals' First Division, setting aside the judgment of the then Court of First
Instance (CFI) of Ilocos Norte, with the following dispositive portion:
WHEREFORE, the appealed judgment is hereby set aside and another rendered in
its stead whereby defendant is hereby sentenced to pay plaintiffs actual damages
of P30,229.45; compensatory damages of P50,000.00; exemplary damages of
P10,000.00; attorney's fees of P3,000.00; plus the costs of suit in both instances. (p.
27 Rollo)
26
Basically, this case involves a clash of evidence whereby both patties strive for the
recognition of their respective versions of the scenario from which the disputed
claims originate. The respondent Court of Appeals (CA) summarized the evidence of
the parties as follows:
From the evidence of plaintiffs it appears that in the evening of June 28 until the
early morning of June 29, 1967 a strong typhoon by the code name "Gening"
buffeted the province of Ilocos Norte, bringing heavy rains and consequent flooding
in its wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after the typhoon had
abated and when the floodwaters were beginning to recede the deceased Isabel
Lao Juan, fondly called Nana Belen, ventured out of the house of her son-in-law,
Antonio Yabes, on No. 19 Guerrero Street, Laoag City, and proceeded northward
towards the direction of the Five Sisters Emporium, of which she was the owner
and proprietress, to look after the merchandise therein that might have been
damaged. Wading in waist-deep flood on Guerrero, the deceased was followed by
Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by the deceased,
and by Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which was partly
owned by the deceased. Aida and Linda walked side by side at a distance of
between 5 and 6 meters behind the deceased, Suddenly, the deceased screamed
"Ay" and quickly sank into the water. The two girls attempted to help, but fear
dissuaded them from doing so because on the spot where the deceased sank they
saw an electric wire dangling from a post and moving in snake-like fashion in the
water. Upon their shouts for help, Ernesto dela Cruz came out of the house of
Antonio Yabes. Ernesto tried to go to the deceased, but at four meters away from
her he turned back shouting that the water was grounded. Aida and Linda prodded
Ernesto to seek help from Antonio Yabes at the YJ Cinema building which was four
or five blocks away.
When Antonio Yabes was informed by Ernesto that his mother-in law had been
electrocuted, he acted immediately. With his wife Jane, together with Ernesto and
one Joe Ros, Yabes passed by the City Hall of Laoag to request the police to ask the
people of defendant Ilocos Norte Electric Company or INELCO to cut off the electric
current. Then the party waded to the house on Guerrero Street. The floodwater
was receding and the lights inside the house were out indicating that the electric
current had been cut off in Guerrero. Yabes instructed his boys to fish for the body
of the deceased. The body was recovered about two meters from an electric post.
In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer
Antonio Juan, Power Plant Engineer of the National Power Corporation at the
Laoag Diesel-Electric Plant, noticed certain fluctuations in their electric meter which
indicated such abnormalities as grounded or short-circuited lines. Between 6:00
and 6:30 A.M., he set out of the Laoag NPC Compound on an inspection. On the
way, he saw grounded and disconnected lines. Electric lines were hanging from the
posts to the ground. Since he could not see any INELCO lineman, he decided to go
to the INELCO Office at the Life Theatre on Rizal Street by way of Guerrero. As he
turned right at the intersection of Guerrero and Rizal, he saw an electric wire about
30 meters long strung across the street "and the other end was seeming to play
with the current of the water." (p. 64, TSN, Oct. 24, 1972) Finding the Office of the
INELCO still closed, and seeing no lineman therein, he returned to the NPC
Compound.
At about 8:10 A.M., Engr. Juan went out of the compound again on another
inspection trip. Having learned of the death of Isabel Lao Juan, he passed by the
house of the deceased at the corner of Guerrero and M.H. del Pilar streets to which
the body had been taken. Using the resuscitator which was a standard equipment
in his jeep and employing the skill he acquired from an in service training on
resuscitation, he tried to revive the deceased. His efforts proved futile. Rigor
mortis was setting in. On the left palm of the deceased, Engr. Juan noticed a hollow
wound. Proceeding to the INELCO Office, he met two linemen on the way. He told
them about the grounded lines of the INELCO In the afternoon of the same day, he
went on a third inspection trip preparatory to the restoration of power. The
dangling wire he saw on Guerrero early in the morning of June 29, 1967 was no
longer there.
Many people came to the house at the corner of Guerrero and M.H. del Pilar after
learning that the deceased had been electrocuted. Among the sympathizers was
Dr. Jovencio Castro, Municipal Health Officer of Sarrat, Ilocos Norte. Upon the
request of the relatives of the deceased, Dr. Castro examined the body at about
8:00 A.M. on June 29, 1967. The skin was grayish or, in medical parlance, cyanotic,
which indicated death by electrocution. On the left palm, the doctor found an
"electrically charged wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree
burn. About the base of the thumb on the left hand was a burned wound. (Exh. C-2,
pp. 102-103, Ibid.) The certificate of death prepared by Dr. Castro stated the cause
of' death as ,'circulatory shock electrocution" (Exh. I; p. 103, Ibid.).
In defense and exculpation, defendant presented the testimonies of its officers and
employees, namely, Conrado Asis, electric engineer; Loreto Abijero, collector-
inspector; Fabico Abijero, lineman; and Julio Agcaoili, president-manager of INELCO
Through the testimonies of these witnesses, defendant sought to prove that on and
even before June 29, 1967 the electric service system of the INELCO in the whole
franchise area, including Area No. 9 which covered the residence of Antonio Yabes
at No. 18 Guerrero Street, did not suffer from any defect that might constitute a
hazard to life and property. The service lines, devices and other INELCO equipment
in Area No. 9 had been newly-installed prior to the date in question. As a public
service operator and in line with its business of supplying electric current to the
public, defendant had installed safety devices to prevent and avoid injuries to
27
persons and damage to property in case of natural calamities such as floods,
typhoons, fire and others. Defendant had 12 linesmen charged with the duty of
making a round-the-clock check-up of the areas respectively assigned to them.
Defendant asserts that although a strong typhoon struck the province of Ilocos
Norte on June 29, 1967, putting to streets of Laoag City under water, only a few
known places in Laoag were reported to have suffered damaged electric lines,
namely, at the southern approach of the Marcos Bridge which was washed away
and where the INELCO lines and posts collapsed; in the eastern part near the
residence of the late Governor Simeon Mandac; in the far north near the
defendant's power plant at the corner of Segundo and Castro Streets, Laoag City
and at the far northwest side, near the premises of the Ilocos Norte National High
School. Fabico Abijero, testified that in the early morning before 6 o'clock on June
29, 1967 he passed by the intersection of Rizal and Guerrero Streets to switch off
the street lights in Area No. 9. He did not see any cut or broken wires in or near the
vicinity. What he saw were many people fishing out the body of Isabel Lao Juan.
A witness in the person of Dr. Antonio Briones was presented by the defense to
show that the deceased could not have died of electrocution Substantially, the
testimony of the doctor is as follows: Without an autopsy on the cadaver of the
victim, no doctor, not even a medicolegal expert, can speculate as to the real cause
of death. Cyanosis could not have been found in the body of the deceased three
hours after her death, because cyanosis which means lack of oxygen circulating in
the blood and rendering the color of the skin purplish, appears only in a live person.
The presence of the elongated burn in the left palm of the deceased (Exhibits C-1
and C-2) is not sufficient to establish her death by electrocution; since burns caused
by electricity are more or less round in shape and with points of entry and exit. Had
the deceased held the lethal wire for a long time, the laceration in her palm would
have been bigger and the injury more massive. (CA Decision, pp. 18-21, Rollo)
An action for damages in the aggregate amount of P250,000 was instituted by the
heirs of the deceased with the aforesaid CFI on June 24, 1968. In its Answer (Vide,
Record on Appeal, p. 55, Rollo), petitioner advanced the theory, as a special
defense, that the deceased could have died simply either by drowning or by
electrocution due to negligence attributable only to herself and not to petitioner. In
this regard, it was pointed out that the deceased, without petitioner's knowledge,
caused the installation of a burglar deterrent by connecting a wire from the main
house to the iron gate and fence of steel matting, thus, charging the latter with
electric current whenever the switch is on. Petitioner then conjectures that the
switch to said burglar deterrent must have been left on, hence, causing the
deceased's electrocution when she tried to open her gate that early morning of
June 29, 1967. After due trial, the CFI found the facts in favor of petitioner and
dismissed the complaint but awarded to the latter P25,000 in moral damages and
attorney's fees of P45,000. An appeal was filed with the CA which issued the
controverted decision.
In this petition for review the petitioner assigns the following errors committed by
the respondent CA:
1. The respondent Court of Appeals committed grave abuse of discretion and error
in considering the purely hearsay alleged declarations of Ernesto de la Cruz as part
of the res gestae.
2. The respondent Court of Appeals committed grave abuse of discretion and error
in holding that the strong typhoon "Gening" which struck Laoag City and Ilocos
Norte on June 29, 1967 and the flood and deluge it brought in its wake were not
fortuitous events and did not exonerate petitioner-company from liability for the
death of Isabel Lao Juan.
3. The respondent Court of Appeals gravely abused its discretion and erred in not
applying the legal principle of "assumption of risk" in the present case to bar
private respondents from collecting damages from petitioner company.
4. That the respondent Court of Appeals gravely erred and abused its discretion in
completely reversing the findings of fact of the trial court.
5. The findings of fact of the respondent Court of Appeals are reversible under the
recognized exceptions.
6. The trial court did not err in awarding moral damages and attorney's fees to
defendant corporation, now petitioner company.
7. Assuming arguendo that petitioner company may be held liable from the death
of the late Isabel Lao Juan, the damages granted by respondent Court of Appeals
are improper and exhorbitant. (Petitioners Memorandum, p. 133, Rollo)
Basically, three main issues are apparent: (1) whether or not the deceased died of
electrocution; (2) whether or not petitioner may be held liable for the deceased's
death; and (3) whether or not the respondent CA's substitution of the trial court's
factual findings for its own was proper.
In considering the first issue, it is Our view that the same be resolved in the
affirmative. By a preponderance of evidence, private respondents were able to
show that the deceased died of electrocution, a conclusion which can be primarily
derived from the photographed burnt wounds (Exhibits "C", "C-1", "C-2") on the
left palm of the former. Such wounds undoubtedly point to the fact that the
deceased had clutched a live wire of the petitioner. This was corroborated by the
testimony of Dr. Jovencio Castro who actually examined the body of the deceased a
28
few hours after the death and described the said burnt wounds as a "first degree
burn" (p. 144, TSN, December 11, 1972) and that they were "electrically charged"
(p. 102, TSN, November 28, 1972). Furthermore, witnesses Linda Alonzo Estavillo
and Aida Bulong added that after the deceased screamed "Ay" and sank into the
water, they tried to render some help but were overcome with fear by the sight of
an electric wire dangling from an electric post, moving in the water in a snake-like
fashion (supra). The foregoing therefore justifies the respondent CA in concluding
that "(t)he nature of the wounds as described by the witnesses who saw them can
lead to no other conclusion than that they were "burns," and there was nothing
else in the street where the victim was wading thru which could cause a burn
except the dangling live wire of defendant company" (CA Decision, p. 22, Rollo).
But in order to escape liability, petitioner ventures into the theory that the
deceased was electrocuted, if such was really the case when she tried to open her
steel gate, which was electrically charged by an electric wire she herself caused to
install to serve as a burglar deterrent. Petitioner suggests that the switch to said
burglar alarm was left on. But this is mere speculation, not backed up with
evidence. As required by the Rules, "each party must prove his own affirmative
allegations." (Rule 131, Sec. 1). Nevertheless, the CA significantly noted that
"during the trial, this theory was abandoned" by the petitioner (CA Decision, p. 23,
Rollo).
Furthermore the CA properly applied the principle of res gestae. The CA said:
Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the
deceased during that fateful morning of June 29, 1967. This Court has not been
offered any sufficient reason to discredit the testimonies of these two young ladies.
They were one in the affirmation that the deceased, while wading in the waist-
deep flood on Guerrero Street five or six meters ahead of them, suddenly screamed
"Ay" and quickly sank into the water. When they approached the deceased to help,
they were stopped by the sight of an electric wire dangling from a post and moving
in snake-like fashion in the water. Ernesto dela Cruz also tried to approach the
deceased, but he turned back shouting that the water was grounded. These bits of
evidence carry much weight. For the subject of the testimonies was a startling
occurrence, and the declarations may be considered part of the res gestae. (CA
Decision, p. 21, Rollo)
For the admission of the res gestae in evidence, the following requisites must be
present: (1) that the principal act, the res gestae, be a startling occurrence; (2) that
the statements were made before the declarant had time to contrive or devise; (3)
that the statements made must concern the occurrence in question and its
immediately attending circumstances (People vs. Ner, 28 SCRA 1151; People vs.
Balbas, 122 SCRA 959). We do not find any abuse of discretion on the CA' part in
view of the satisfaction of said requisites in the case at bar.
The statements made relative to the startling occurrence are admitted in evidence
precisely as an exception to the hearsay rule on the grounds of trustworthiness and
necessity. "Trustworthiness" because the statements are made instinctively
(Wesley vs. State, 53 Ala. 182), and "necessity" because such natural and
spontaneous utterances are more convincing than the testimony of the same
person on the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact that the
declarant, Ernesto de la Cruz, was not presented to testify does not make the
testimony of Linda Alonzo Estavillo and Aida Bulong hearsay since the said
declaration is part of the res gestae. Similarly, We considered part of the res
gestae a conversation between two accused immediately after commission of the
crime as overheard by a prosecution witness (People vs. Reyes, 82 Phil. 563).
While it may be true that, as petitioner argues (vide petitioner's Memorandum, p.
135, Rollo), Ernesto de la Cruz was not an actual witness to the instant when the
deceased sank into the waist-deep water, he acted upon the call of help of Aida
Bulong and Linda Alonzo Estavillo with the knowledge of, and immediately after,
the sinking of the deceased. In fact the startling event had not yet ceased when
Ernesto de la Cruz entered the scene considering that the victim remained
submerged. Under such a circumstance, it is undeniable that a state of mind
characterized by nervous excitement had been triggered in Ernesto de la Cruz's
being as anybody under the same contingency could have experienced. As such,
We cannot honestly exclude his shouts that the water was grounded from the res
gestae just because he did not actually see the sinking of the deceased nor hear her
scream "Ay."
Neither can We dismiss the said declaration as a mere opinion of Ernesto de la
Cruz. While We concede to the submission that the statement must be one of facts
rather than opinion, We cannot agree to the proposition that the one made by him
was a mere opinion. On the contrary, his shout was a translation of an actuality as
perceived by him through his sense of touch.
Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was
suppressed by the private respondents, thus, is presumed to be adverse to them
pursuant to Section 5(e), Rule 131. For the application of said Rule as against a
party to a case, it is necessary that the evidence alleged to be suppressed is
available only to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil. 953).
The presumption does not operate if the evidence in question is equally available
to both parties (StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 Phil. 421). It
is clear from the records that petitioner could have called Ernesto de la Cruz to the
29
witness stand. This, precisely, was Linda Alonzo Estavillo's suggestion to petitioner's
counsel when she testified on cross examination:
Q. And that Erning de la Cruz, how far did he reach from the gate of the house?
A. Well, you can ask that matter from him sir because he is here. (TSN, p. 30, 26
Sept. 1972)
The foregoing shows that petitioner had the opportunity to verify the declarations
of Ernesto de la Cruz which, if truly adverse to private respondent, would have
helped its case. However, due to reasons known only to petitioner, the opportunity
was not taken.
Coming now to the second issue, We tip the scales in the private respondents'
favor. The respondent CA acted correctly in disposing the argument that petitioner
be exonerated from liability since typhoons and floods are fortuitous events. While
it is true that typhoons and floods are considered Acts of God for which no person
may be held responsible, it was not said eventuality which directly caused the
victim's death. It was through the intervention of petitioner's negligence that death
took place. We subscribe to the conclusions of the respondent CA when it found:
On the issue whether or not the defendant incurred liability for the electrocution
and consequent death of the late Isabel Lao Juan, defendant called to the witness-
stand its electrical engineer, chief lineman, and lineman to show exercise of
extraordinary diligence and to negate the charge of negligence. The witnesses
testified in a general way about their duties and the measures which
defendant usuallyadopts to prevent hazards to life and limb. From these
testimonies, the lower court found "that the electric lines and other equipment of
defendant corporation were properly maintained by a well-trained team of
lineman, technicians and engineers working around the clock to insure that these
equipments were in excellent condition at all times." (P. 40, Record on Appeal) The
finding of the lower court, however, was based on what the defendant's employees
were supposed to do, not on what they actually did or failed to do on the date in
question, and not on the occasion of the emergency situation brought about by the
typhoon.
The lower court made a mistake in assuming that defendant's employees worked
around the clock during the occurrence of the typhoon on the night of June 28 and
until the early morning of June 29, 1967, Engr. Antonio Juan of the National Power
Corporation affirmed that when he first set out on an inspection trip between 6:00
and 6:30 A.M. on June 29, 1967, he saw grounded and disconnected electric lines
of the defendant but he saw no INELCO lineman. The INELCO Office at the Life
theatre on Rizal Street was still closed. (pp. 63-64, TSN, Oct. 24, 1972) Even the
witnesses of defendant contradict the finding of the lower court. Conrado Asis,
defendant's electrical engineer, testified that he conducted a general inspection of
the franchise area of the INELCO only on June 30, 1967, the day following the
typhoon. The reason he gave for the delay was that all their vehicles were
submerged. (p. 337, TSN, July 20, 1973) According to Asis, he arrived at his office at
8:00 A.M. on June 30 and after briefing his men on what to do they started out. (p.
338, lbid) One or two days after the typhoon, the INELCO people heard "rumors
that someone was electrocuted" so he sent one of his men to the place but his man
reported back that there was no damaged wire. (p. 385, Id.) Loreto Abijero, chief
lineman of defendant, corroborated Engr. Juan. He testified that at about 8:00 A.M.
on June 29, 1967 Engr. Juan came to the INELCO plant and asked the INELCO
people to inspect their lines. He went with Engr. Juan and their inspection lasted
from 8:00 A.M. to 12:00 noon. (pp. 460, 465, TSN, Jan. 28, 1975) Fabico Abijero
lineman of defendant, testified that at about 6:00 on June 29, 1967 the typhoon
ceased. At that time, he was at the main building of the Divine Word College of
Laoag where he had taken his family for refuge. (pp. 510-511, Ibid.)
In times of calamities such as the one which occurred in Laoag City on the night of
June 28 until the early hours of June 29, 1967, extraordinary diligence requires a
supplier of electricity to be in constant vigil to prevent or avoid any probable
incident that might imperil life or limb. The evidence does not show that defendant
did that. On the contrary, evidence discloses that there were no men (linemen or
otherwise) policing the area, nor even manning its office. (CA Decision, pp. 24-25,
Rollo)
Indeed, under the circumstances of the case, petitioner was negligent in seeing to it
that no harm is done to the general public"... considering that electricity is an
agency, subtle and deadly, the measure of care required of electric companies
must be commensurate with or proportionate to the danger. The duty of exercising
this high degree of diligence and care extends to every place where persons have a
right to be" (Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of petitioner
having been shown, it may not now absolve itself from liability by arguing that the
victim's death was solely due to a fortuitous event. "When an act of God combines
or concurs with the negligence of the defendant to produce an injury, the
defendant is liable if the injury would not have resulted but for his own negligent
conduct or omission" (38 Am. Jur., p. 649).
Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no
application in the case at bar. It is imperative to note the surrounding
circumstances which impelled the deceased to leave the comforts of a roof and
brave the subsiding typhoon. As testified by Linda Alonzo Estavillo (see TSN, p. 5, 26
Sept. 1972) and Aida Bulong (see TSN, p. 43, 26 Sept. 1972), the deceased,
accompanied by the former two, were on their way to the latter's grocery store "to
see to it that the goods were not flooded." As such, shall We punish her for
30
exercising her right to protect her property from the floods by imputing upon her
the unfavorable presumption that she assumed the risk of personal injury?
Definitely not. For it has been held that 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 (65A C.S.C. Negligence(174(5), p. 301), or when he seeks to rescue his
endangered property (Harper and James, "The Law of Torts." Little, Brown and Co.,
1956, v. 2, p. 1167). Clearly, an emergency was at hand as the deceased's property,
a source of her livelihood, was faced with an impending loss. Furthermore, the
deceased, at the time the fatal incident occurred, was at a place where she had a
right to be without regard to petitioner's consent as she was on her way to protect
her merchandise. Hence, private respondents, as heirs, may not be barred from
recovering damages as a result of the death caused by petitioner's negligence
(ibid., p. 1165, 1166).
But petitioner assails the CA for having abused its discretion in completely
reversing the trial court's findings of fact, pointing to the testimonies of three of its
employees its electrical engineer, collector-inspector, lineman, and president-
manager to the effect that it had exercised the degree of diligence required of it in
keeping its electric lines free from defects that may imperil life and limb. Likewise,
the said employees of petitioner categorically disowned the fatal wires as they
appear in two photographs taken on the afternoon of June 29, 1967 (Exhs. "D" and
"E"), suggesting that said wires were just hooked to the electric post (petitioner's
Memorandum, p. 170, Rollo). However, as the CA properly held, "(t)he finding of
the lower court ... was based on what the defendant's employees were supposed
to do, not on what they actually did or failed to do on the date in question, and not
on the occasion of the emergency situation brought about by the typhoon" (CA
Decision, p. 25, Rollo). And as found by the CA, which We have already reiterated
above, petitioner was in fact negligent. In a like manner, petitioner's denial of
ownership of the several wires cannot stand the logical conclusion reached by the
CA when it held that "(t)he nature of the wounds as described by the witnesses
who saw them can lead to no other conclusion than that they were 'burns', and
there was nothing else in the street where the victim was wading thru which could
cause a burn except the dangling live wire of defendant company" (supra).
"When a storm occurs that is liable to prostrate the wires, due care requires
prompt efforts to discover and repair broken lines" (Cooley on Torts, 4th ed., v. 3,
p. 474). The fact is that when Engineer Antonio Juan of the National Power
Corporation set out in the early morning of June 29, 1967 on an inspection tour, he
saw grounded and disconnected lines hanging from posts to the ground but did not
see any INELCO lineman either in the streets or at the INELCO office (vide, CA
Decision, supra). The foregoing shows that petitioner's duty to exercise
extraordinary diligence under the circumstance was not observed, confirming the
negligence of petitioner. To aggravate matters, the CA found:
. . .even before June 28 the people in Laoag were already alerted about the
impending typhoon, through radio announcements. Even the fire department of
the city announced the coming of the big flood. (pp. 532-534, TSN, March 13, 1975)
At the INELCO irregularities in the flow of electric current were noted because
"amperes of the switch volts were moving". And yet, despite these danger signals,
INELCO had to wait for Engr. Juan to request that defendant's switch be cut off but
the harm was done. Asked why the delay, Loreto Abijero answered that he "was
not the machine tender of the electric plant to switch off the current." (pp. 467-
468, Ibid.) How very characteristic of gross inefficiency! (CA Decision, p. 26, Rollo)
From the preceding, We find that the CA did not abuse its discretion in reversing
the trial court's findings but tediously considered the factual circumstances at hand
pursuant to its power to review questions of fact raised from the decision of the
Regional Trial Court, formerly the Court of First Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent CA awarded the following
in private respondent's favor: P30,229.45 in actual damages (i.e., P12,000 for the
victim's death and P18,229.45 for funeral expenses); P50,000 in compensatory
damages, computed in accordance with the formula set in the Villa-Rey Transit case
(31 SCRA 511) with the base of P15,000 as average annual income of the deceased;
P10,000 in exemplary damages; P3,000 attorney's fees; and costs of suit. Except for
the award of P12,000 as compensation for the victim's death, We affirm the
respondent CA's award for damages and attorney's fees. Pusuant to recent
jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA
381), We increase the said award of P12,000 to P30,000, thus, increasing the total
actual damages to P48,229.45.
The exclusion of moral damages and attorney's fees awarded by the lower court
was properly made by the respondent CA, the charge of malice and bad faith on
the part of respondents in instituting his case being a mere product of wishful
thinking and speculation. Award of damages and attorney's fees is unwarranted
where the action was filed in good faith; there should be no penalty on the right to
litigate (Espiritu vs. CA, 137 SCRA 50). If damage results from a person's exercising
his legal rights, it is damnum absque injuria (Auyong Hian vs. CTA, 59 SCRA 110).
WHEREFORE, the questioned decision of the respondent, except for the slight
modification that actual damages be increased to P48,229.45 is hereby AFFIRMED.
SO ORDERED.
Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.
31
ABROGAR v. COSMOS
ABROGAR vs. COSMOS BOTTLING COMPANY and INTERGAMES INC.
G.R. No. 064749
March 15, 2017
Facts:
This case involves a claim for damages arising from the negligence causing the
death of a participant in an organized marathon bumped by a passenger jeepney
on the route of the race. The issues revolve on whether the organizer and the
sponsor of the marathon were guilty of negligence, and, if so, was their negligence
the proximate cause of the death of the participant; on whether the negligence of
the driver of the passenger jeepney was an efficient intervening cause; on whether
the doctrine of assumption of risk was applicable to the fatality; and on whether
the heirs of the fatality can recover damages for loss of earning capacity of the
latter who, being then a minor, had no gainful employment.
In the RTC decision dated May 10, 1991, judgment was rendered in favor of
plaintiffs-spouses Romulo Abrogar and Erlinda Abrogar and against defendants
Cosmos Bottling Company, Inc. and Intergames, Inc., ordering both defendants,
jointly and severally, to pay and deliver to the plaintiffs the amounts of Twenty
Eight Thousand Sixty One Pesos and Sixty Three Centavos (P28,061.63) as actual
damages; One Hundred Thousand Pesos (P100,000.00) as moral damages; Fifty
Thousand Pesos (P50,000.00) as exemplary damages and Ten Percent (10%) of the
total amount of One Hundred Seventy Eight Thousand Sixty One Pesos and Sixty
Three Centavos (P178,061,63) or Seventeen Thousand Eight Hundred Six Pesos and
Sixteen Centavos (P17,806.16) as attorney's fees. On the cross-claim of defendant
Cosmos Bottling Company, Inc., defendant Intergames, Inc, is hereby ordered to
reimburse to the former any and all amounts which may be recovered by the
plaintiffs from it by virtue of this Decision.
The RTC observed that the safeguards allegedly instituted by Intergames in 3. Whether or not the appellants Abrogar are entitled to be compensated for the
conducting the marathon had fallen short of the yardstick to satisfy the "loss of earning capacity" of their son Rommel.
requirements of due diligence as called for by and appropriate under the
circumstances; that the accident had happened because of inadequate preparation
and Intergames' failure to exercise due diligence; that the respondents could not
4. Whether or not the appellants Abrogar are entitled to the actual, moral, and
be excused from liability by hiding behind the waiver executed by Rommel and the
exemplary damages granted to them by the Trial Court. In its assailed judgment on
permission given to him by his parents because the waiver could only be effective
March 10, 2004 and in view of the fact that both defendants are not liable for the
for risks inherent in the marathon, such as stumbling, heat stroke, heart attack
death of Rommel Abrogar, appellants-spouses are not entitled to actual, moral,
during the race, severe exhaustion and similar occurrences; that the liability of the
exemplary damages as well as for the "loss of earning capacity" of their son. The
respondents towards the participants and third persons was solidary, because
third and fourth issues are thus moot and academic. UPON THE VIEW OF THIS
Cosmos, the sponsor of the event, had been the principal mover of the event, and,
CASE, THUS, the judgment appealed from must be, as it hereby is, REVERSED and
as such, had derived benefits from the marathon that in turn had carried
SET ASIDE and another entered DISMISSING the complaint a quo. The appellants
responsibilities towards the participants and the public; that the respondents'
shall bear their respective costs.
agreement to free Cosmos from any liability had been an agreement binding only
between them, and did not bind third persons; and that Cosmos had a cause of
action against Intergames for whatever could be recovered by the petitioners from
Cosmos.

Issues:

All parties appealed to the CA. The petitioners contended that the RTC erred in not
awarding damages for loss of earning capacity on the part of Rommel for the
reason that such damages were not recoverable due to Rommel not yet having
finished his schooling; and that it would be premature to award such damages
upon the assumption that he would finish college and be gainfully employed. The
CA reduced the issues to four, namely:
1. Whether or not appellant Intergames were negligent in its conduct of the 1st
Pop Cola Junior Marathon" held on June 15, 1980 and if so, whether its negligence
was the proximate cause of the death of Rommel Abrogar.
2. Whether or not appellant Cosmos can be held jointly and solidarity liable with
appellant Intergames for the death of Rommel Abrogar, assuming that appellant
Intergames is found to have been negligent in the conduct of the Pop Cola
marathon and such negligence was the proximate cause of the death of Rommel
Abrogar.
1. Whether or not the CA gravely erred in reversing the RTC Decision, (and) in
holding that respondent Intergames was not negligent considering that:
A. Respondent Intergames failed to exercise the diligence of a good father of the
family in the conduct of the marathon in that it did not block off from traffic the
marathon route; and
B. Respondent Intergames' preparations for the race, including the number of
marshal during the marathon, were glaringly inadequate to prevent the happening
of the injury to its participants.
2. Whether or not the CA gravely erred in reversing the RTC Decision, (and) in
holding that the doctrine of assumption of risk finds application to the case at bar
even though getting hit or run over by a vehicle is not an inherent risk in a
marathon race. Even assuming arguendo that deceased Abrogar made such waiver
as claimed, still there can be no valid waiver of one's right to life and limb for being
against public policy.

32

3. Whether or not the CA gravely erred in reversing the RTC Decision (and) in
absolving respondent Cosmos from liability to petitioners on the sole ground that
respondent Cosmos' contract with respondent Intergames contained a stipulation
exempting the former from liability.
4. Whether or not the CA gravely erred in reversing the RTC Decision and
consequently holding respondents free from liability, (and) in not awarding
petitioners with actual, moral and exemplary damages for the death of their child,
Rommel Abrogar.
Held:
1. Yes. Negligence is 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. Under
Article 1173 of the Civil Code, it consists of the "omission of that diligence which is
required by the nature of the obligation and corresponds with the circumstances of
the person, of the time and of the place. The Civil Code makes liability for
negligence clear under Article 2176, and Article 20.
2. Yes. 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. As a defense in negligence cases, therefore, the doctrine requires
the concurrence of three elements, namely; the plaintiff must know that the risk is
present;he must further understand its nature; and his choice to incur it must be
free and voluntary. Neither was the waiver by Rommel, then a minor, an effective
33
form of express or implied consent in the context of the doctrine of assumption of
risk. There is ample authority, cited in Prosser, to the effect that a person does not
comprehend the risk involved in a known situation because of his youth, or lack of
information or experience, and thus will not be taken to consent to assume the
risk. Clearly, the doctrine of assumption of risk does not apply to bar recovery by
the petitioners.
3. No. The sponsorship of the marathon by Cosmos was limited to financing the
race. Cosmos did nothing beyond that, and did not involve itself at all in the
preparations for the actual conduct of the race. This verity was expressly confirmed
by Intergames, through Castro, Jr.
4. Yes. Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all
damages which are the natural and probable consequences of the act or omission
complained of. It is not necessary that such damages have been foreseen or could
have reasonably been foreseen by the defendant.
Torts And Damages Case Digest: Valenzuela V. CA (1996)
G.R.No. 115024 February 7, 1996
Lessons Applicable:
▪ Calculation of Risk (Torts and Damages)
▪ Factors in Determining Amount (Torts and Damages)
FACTS:
▪ June 24, 1990 2 am: While driving from her restaurant at Araneta avenue
towards the direction of Manila, Ma. Lourdes Valenzuela noticed that she
had a flat tire so she parked along the sidewalk about 1 1/2 feet away,
place her emergency lights and seeked help
▪ She was with her companion Cecilia Ramon
▪ While she was pointing her tools to the man who will help her fixed the
tires, she was suddenly hit by another Mitsubishi Lancer driven by
 Richard Li who was intoxicated and she slammed accross his windshield
and fell to the ground
▪ She was sent to UERM where she stayed for 20 days and her leg was
amputated and was replaced with an artificial one.
▪ Her expenses totalled 147, 000 [120,000 php (confinement) +
27, 000 (aritificial leg)]
▪ RTC: Richard Li guilty of gross negligence and liable for damages under
Article 2176 of the Civil Code. Alexander Commercial, Inc., Li’s employer,
jointly and severally liable for damages pursuant to Article 2180 P41,840
actual damages, P37,500 unrealized profits because of the stoppage of
plaintiffs Bistro La Conga restaurant 3 weeks after the accident on June
24, 1990, P20,000 a month as unrealized profits of Bistro La
Conga restaurant, from August, 1990 until the date of this
judgment, P30,000.00, a month, for unrealized profits in 2 Beauty
salons, P1,000,000 in moral damages, P50,000, as exemplary
damages, P60,000, as reasonable attorney’s fees and costs.
▪ CA: there was ample evidence that the car was parked at the side but
absolved Li's employer
▪ Li: 55 kph - self serving and uncorraborated
▪ Rogelio Rodriguez, the owner-operator of an establishment
located just across the scene of the accident: Valenzuela’s car
parked parallel and very near the sidewalk and Li was driving on
a very fast speed and there was only a drizzle (NOT heavy rain)
ISSUE:
1. W/N Li was driving at 55 kph - NO
2. W/N Valenzuela was guilty of contributory negligence - NO
3. W/N Alexander Commercial, Inc. as Li's employer should be held liable - YES
4. W/N the awarding of damages is proper. - YES.
HELD: CA modified with reinstating the RTC decision
34
1. NO
▪ If Li was running at only about 55 kph then despite the wet and slippery
road, he could have avoided hitting the Valenzuela by the mere
expedient or applying his brakes at the proper time and distance
▪ it was not even necessary for him to swerve a little to the right in order to
safely avoid a collision with the on-coming car since there is plenty of
space for both cars, since Valenzuela car was running at the right lane
going towards Manila and the on-coming car was also on its right lane
going to Cubao
2. NO.
▪ Contributory negligence is conduct on the part of the injured party,
contributing as a legal cause to the harm he has suffered, which falls
below the standard to which he is required to conform for his own
protection
▪ emergency rule
▪ 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
▪ 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
▪ She stopped at a lighted place where there were
people, to verify whether she had a flat tire and to
solicit help if needed
▪ she parked along the sidewalk, about 1½ feet away,
behind a Toyota Corona Car
3. YES.
 ▪ Not the principle of respondeat superior, which holds the master liable
for acts of the servant (must be in the course of business), but that of
pater familias, in which the liability ultimately falls upon the employer,
for his failure to exercise the diligence of a good father of the family in
the selection and supervision of his employees
▪ Ordinarily, evidence demonstrating that the employer has exercised
diligent supervision of its employee during the performance of the
latter‘s assigned tasks would be enough to relieve him of the liability
imposed by Article 2180 in relation to Article 2176 of the Civil Code.
▪ situation is of a different character, involving a practice utilized
by large companies with either their employees of managerial
rank or their representatives.
▪ Moreover, Li’s claim that he happened to be on the road on the night of
the accident because he was coming from a social visit with an officemate
in Parañaque was a bare allegation which was never corroborated in the
court below. It was obviously self-serving. Assuming he really came from
his officemate’s place, the same could give rise to speculation that he and
his officemate had just been from a work-related function, or they were
together to discuss sales and other work related strategies.
▪ Alexander Commercial, Inc. has not demonstrated, to our satisfaction,
that it exercised the care and diligence of a good father of the family in
entrusting its company car to Li
4. YES.
▪ As the amount of moral damages are subject to this Court’s discretion,
we are of the opinion that the amount of P1,000,000.00 granted by the
trial court is in greater accord with the extent and nature of the injury -.
physical and psychological - suffered by Valenzuela as a result of Li’s
grossly negligent driving of his Mitsubishi Lancer in the early morning
hours of the accident.
▪ the damage done to her would not only be permanent and
lasting, it would also be permanently changing and adjusting to
the physiologic changes which her body would normally
undergo through the years. The replacements, changes, and
adjustments will require corresponding adjustive physical and
occupational therapy. All of these adjustments, it has been
documented, are painful.
35
G.R. No. 202666 September 29, 2014
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID
SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN
DOES, Respondents.
DECISION
VELASCO, JR., J.:
The individual's desire for privacy is never absolute, since participation in
society is an equally powerful desire. Thus each individual is continually
engaged in a personal adjustment process in which he balances the desire
for privacy with the desire for disclosure and communication of himself to
others, in light of the environmental conditions and social norms set by the
society in which he lives.
- Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, in relation to Section 19 of A.M. No. 08-1-16-SC,1 otherwise known as
the "Rule on the Writ of Habeas Data." Petitioners herein assail the July 27,
2012 Decision2 of the Regional Trial Court, Branch 14 in Cebu City (RTC) in
SP. Proc. No. 19251-CEB, which dismissed their habeas data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both
minors, were, during the period material, graduating high school students at
St. Theresa's College (STC), Cebu City. Sometime in January 2012, while
changing into their swimsuits for a beach party they were about to attend,
Julia and Julienne, along with several others, took digital pictures of
themselves clad only in their undergarments. These pictures were then
uploaded by Angela Lindsay Tan (Angela) on her Facebook3 profile.
Back at the school, Mylene Rheza T. Escudero (Escudero), a computer
teacher at STC’s high school department, learned from her students that
some seniors at STC posted pictures online, depicting themselves from the
waist up, dressed only in brassieres. Escudero then asked her students if
they knew who the girls in the photos are. In turn, they readily identified
Julia, Julienne, and Chloe Lourdes Taboada (Chloe), among others.
Using STC’s computers, Escudero’s students logged in to their respective
personal Facebook accounts and showed her photos of the identified
students, which include: (a) Julia and Julienne drinking hard liquor and
smoking cigarettes inside a bar; and (b) Julia and Julienne along the streets
of Cebu wearing articles of clothing that show virtually the entirety of their
black brassieres. What is more, Escudero’s students claimed that there were
times when access to or the availability of the identified students’ photos was
not confined to the girls’ Facebook friends,4but were, in fact, viewable by any
Facebook user.5
Upon discovery, Escudero reported the matter and, through one of her
student’s Facebook page, showed the photosto Kristine Rose Tigol (Tigol),
STC’s Discipline-in-Charge, for appropriate action. Thereafter, following an
investigation, STC found the identified students to have deported themselves
in a manner proscribed by the school’s Student Handbook, to wit:
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholicbeverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity;
contains sexually suggestive messages, language or symbols; and
6. Posing and uploading pictures on the Internet that entail ample
body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other students in the
pictures in question, reported, as required, to the office of Sr. Celeste Ma.
Purisima Pe (Sr. Purisima), STC’s high school principal and ICM6 Directress.
They claimed that during the meeting, they were castigated and verbally
abused by the STC officials present in the conference, including Assistant
Principal Mussolini S. Yap (Yap), Roswinda Jumiller, and Tigol. What is
more, Sr. Purisima informed their parents the following day that, as part of
their penalty, they are barred from joining the commencement exercises
scheduled on March 30, 2012.
A week before graduation, or on March 23, 2012, Angela’s mother, Dr.
Armenia M. Tan (Tan), filed a Petition for Injunction and Damages before the
36
RTC of Cebu City against STC, et al., docketed as Civil Case No. CEB-
38594.7In it, Tan prayed that defendants therein be enjoined from
implementing the sanction that precluded Angela from joining the
commencement exercises.
On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of
Julia, joined the fray as an intervenor. On March 28, 2012, defendants inCivil
Case No. CEB-38594 filed their memorandum, containing printed copies of
the photographs in issue as annexes. That same day, the RTC issued a
temporary restraining order (TRO) allowing the students to attend the
graduation ceremony, to which STC filed a motion for reconsideration.
Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned
students from participating in the graduation rites, arguing that, on the date
of the commencement exercises, its adverted motion for reconsideration on
the issuance ofthe TRO remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance of a
Writ of Habeas Data, docketed as SP. Proc. No. 19251-CEB8 on the basis of
the following considerations:
1. The photos of their children in their undergarments (e.g., bra)
were taken for posterity before they changed into their swimsuits on
the occasion of a birthday beach party;
2. The privacy setting of their children’s Facebook accounts was set
at "Friends Only." They, thus, have a reasonable expectation of
privacy which must be respected.
3. Respondents, being involved in the field of education, knew or
ought to have known of laws that safeguard the right to privacy.
Corollarily, respondents knew or ought to have known that the girls,
whose privacy has been invaded, are the victims in this case, and
not the offenders. Worse, after viewing the photos, the minors were
called "immoral" and were punished outright;
4. The photos accessed belong to the girls and, thus, cannot be
used and reproduced without their consent. Escudero, however,
violated their rights by saving digital copies of the photos and by
subsequently showing them to STC’s officials. Thus, the Facebook
accounts of petitioners’ children were intruded upon;
 5. The intrusion into the Facebook accounts, as well as the copying
of information, data, and digital images happened at STC’s
Computer Laboratory; and
6. All the data and digital images that were extracted were boldly
broadcasted by respondents through their memorandum submitted
to the RTC in connection with Civil Case No. CEB-38594. To
petitioners, the interplay of the foregoing constitutes an invasion of
their children’s privacy and, thus, prayed that: (a) a writ of habeas
databe issued; (b) respondents be ordered to surrender and deposit
with the court all soft and printed copies of the subjectdata before or
at the preliminary hearing; and (c) after trial, judgment be rendered
declaring all information, data, and digital images accessed, saved
or stored, reproduced, spread and used, to have been illegally
obtained inviolation of the children’s right to privacy.
Finding the petition sufficient in form and substance, the RTC, through an
Order dated July 5, 2012, issued the writ of habeas data. Through the same
Order, herein respondents were directed to file their verified written return,
together with the supporting affidavits, within five (5) working days from
service of the writ.
In time, respondents complied with the RTC’s directive and filed their verified
written return, laying down the following grounds for the denial of the petition,
viz: (a) petitioners are not the proper parties to file the petition; (b) petitioners
are engaging in forum shopping; (c) the instant case is not one where a writ
of habeas data may issue;and (d) there can be no violation of their right to
privacy as there is no reasonable expectation of privacy on Facebook.
Ruling of the Regional Trial Court
On July 27, 2012, the RTC rendered a Decision dismissing the petition for
habeas data. The dispositive portion of the Decision pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is hereby
DISMISSED.
The parties and media must observe the aforestated confidentiality.
xxxx
SO ORDERED.9
37
To the trial court, petitioners failed to prove the existence of an actual or
threatened violation of the minors’ right to privacy, one of the preconditions
for the issuance of the writ of habeas data. Moreover, the court a quoheld
that the photos, having been uploaded on Facebook without restrictions as
to who may view them, lost their privacy in some way. Besides, the RTC
noted, STC gathered the photographs through legal means and for a legal
purpose, that is, the implementation of the school’s policies and rules on
discipline.
Not satisfied with the outcome, petitioners now come before this Court
pursuant to Section 19 of the Rule on Habeas Data.10
The Issues
The main issue to be threshed out inthis case is whether or not a writ of
habeas datashould be issued given the factual milieu. Crucial in resolving
the controversy, however, is the pivotal point of whether or not there was
indeed an actual or threatened violation of the right to privacy in the life,
liberty, or security of the minors involved in this case.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the availability of the Writ of Habeas Data
The writ of habeas datais a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act
or omission of a public official or employee, or of a 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.11 It is an independent and summary remedy designed to protect the
image, privacy, honor, information, and freedom of information of an
individual, and to provide a forum to enforce one’s right to the truth and to
informational privacy. It seeks to protect a person’s right to control
information regarding oneself, particularly in instances in which such
information is being collected through unlawful means in order to achieve
unlawful ends.12
In developing the writ of habeas data, the Court aimed to protect an
individual’s right to informational privacy, among others. A comparative law
scholar has, in fact, defined habeas dataas "a procedure designed to
safeguard individual freedom from abuse in the information age." 13 The writ,
however, will not issue on the basis merely of an alleged unauthorized
access to information about a person.Availment of the writ requires the
existence of a nexus between the right to privacy on the one hand, and the
right to life, liberty or security on the other.14 Thus, the existence of a
person’s right to informational privacy and a showing, at least by substantial
evidence, of an actual or threatened violation of the right to privacy in life,
liberty or security of the victim are indispensable before the privilege of the
writ may be extended.15
Without an actionable entitlement in the first place to the right to
informational privacy, a habeas datapetition will not prosper. Viewed from
the perspective of the case at bar,this requisite begs this question: given the
nature of an online social network (OSN)––(1) that it facilitates and promotes
real-time interaction among millions, if not billions, of users, sans the spatial
barriers,16 bridging the gap created by physical space; and (2) that any
information uploaded in OSNs leavesan indelible trace in the provider’s
databases, which are outside the control of the end-users––is there a right to
informational privacy in OSN activities of its users? Before addressing this
point, We must first resolve the procedural issues in this case.
a. The writ of habeas data is not only confined to cases of extralegal killings
and enforced disappearances
Contrary to respondents’ submission, the Writ of Habeas Datawas not
enacted solely for the purpose of complementing the Writ of Amparoin cases
of extralegal killings and enforced disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of
habeas data. However, in cases of extralegal killings and enforced
disappearances, the petition may be filed by:
(a) Any member of the immediate family of the aggrieved party,
namely: the spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degreeof consanguinity or
affinity, in default of those mentioned in the preceding paragraph.
(emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ only
to cases of extralegal killings or enforced disappearances, the above
underscored portion of Section 2, reflecting a variance of habeas data
situations, would not have been made.
38
Habeas data, to stress, was designed "to safeguard individual freedom from
abuse in the information age."17 As such, it is erroneous to limit its
applicability to extralegal killings and enforced disappearances only. In fact,
the annotations to the Rule preparedby the Committee on the Revision of the
Rules of Court, after explaining that the Writ of Habeas Data complements
the Writ of Amparo, pointed out that:
The writ of habeas data, however, can be availed of as an independent
remedy to enforce one’s right to privacy, more specifically the right to
informational privacy. The remedies against the violation of such right can
include the updating, rectification, suppression or destruction of the database
or information or files in possession or in control of respondents. 18 (emphasis
Ours) Clearly then, the privilege of the Writ of Habeas Datamay also be
availed of in cases outside of extralegal killings and enforced
disappearances.
b. Meaning of "engaged" in the gathering, collecting or storing of data or
information
Respondents’ contention that the habeas data writ may not issue against
STC, it not being an entity engaged in the gathering, collecting or storing of
data or information regarding the person, family, home and correspondence
of the aggrieved party, while valid to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the habeas data
protection shall be available only against abuses of a person or entity
engaged in the businessof gathering, storing, and collecting of data. As
provided under Section 1 of the Rule:
Section 1. Habeas Data. – The writ of habeas datais a remedy available to
any person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee, or
of a 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. (emphasis Ours)
The provision, when taken in its proper context, as a whole, irresistibly
conveys the idea that habeas data is a protection against unlawful acts or
omissions of public officials and of private individuals or entities engaged in
gathering, collecting, or storing data about the aggrieved party and his or her
correspondences, or about his or her family. Such individual or entity need
not be in the business of collecting or storing data.
To "engage" in something is different from undertaking a business
endeavour. To "engage" means "to do or take part in something." 19 It does
not necessarily mean that the activity must be done in pursuit of a business.
What matters is that the person or entity must be gathering, collecting or
storing said data or information about the aggrieved party or his or her
family. Whether such undertaking carries the element of regularity, as when
one pursues a business, and is in the nature of a personal endeavour, for
any other reason or even for no reason at all, is immaterial and such will not
prevent the writ from getting to said person or entity.
To agree with respondents’ above argument, would mean unduly limiting the
reach of the writ to a very small group, i.e., private persons and entities
whose business is data gathering and storage, and in the process
decreasing the effectiveness of the writ asan instrument designed to protect
a right which is easily violated in view of rapid advancements in the
information and communications technology––a right which a great majority
of the users of technology themselves are not capable of protecting.
Having resolved the procedural aspect of the case, We now proceed to the
core of the controversy.
The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacyhas, through time, greatly evolved, with technological
advancements having an influential part therein. This evolution was briefly
recounted in former Chief Justice Reynato S. Puno’s speech, The Common
Right to Privacy,20 where he explained the three strands of the right to
privacy, viz: (1) locational or situational privacy; 21(2) informational privacy;
and (3) decisional privacy.22 Of the three, what is relevant to the case at bar
is the right to informational privacy––usually defined as the right of
individuals to control information about themselves. 23
With the availability of numerous avenues for information gathering and data
sharing nowadays, not to mention each system’s inherent vulnerability to
attacks and intrusions, there is more reason that every individual’s right to
control said flow of information should be protected and that each individual
should have at least a reasonable expectation of privacy in cyberspace.
Several commentators regarding privacy and social networking sites,
however, all agree that given the millions of OSN users, "[i]n this [Social
Networking] environment, privacy is no longer grounded in reasonable
39
expectations, but rather in some theoretical protocol better known as wishful
thinking."24
It is due to this notion that the Court saw the pressing need to provide for
judicial remedies that would allow a summary hearing of the unlawful use of
data or information and to remedy possible violations of the right to
privacy.25 In the same vein, the South African High Court, in its Decision in
the landmark case, H v. W,26promulgated on January30, 2013, recognized
that "[t]he law has to take into account the changing realities not only
technologically but also socially or else it will lose credibility in the eyes of
the people. x x x It is imperative that the courts respond appropriately to
changing times, acting cautiously and with wisdom." Consistent with this, the
Court, by developing what may be viewed as the Philippine model of the writ
of habeas data, in effect, recognized that, generally speaking, having an
expectation of informational privacy is not necessarily incompatible with
engaging in cyberspace activities, including those that occur in OSNs.
The question now though is up to whatextent is the right to privacy protected
in OSNs? Bear in mind that informational privacy involves personal
information. At the same time, the very purpose of OSNs is socializing––
sharing a myriad of information,27 some of which would have otherwise
remained personal.
b. Facebook’s Privacy Tools: a response to the clamor for privacy in OSN
activities
Briefly, the purpose of an OSN is precisely to give users the ability to interact
and to stay connected to other members of the same or different social
media platform through the sharing of statuses, photos, videos, among
others, depending on the services provided by the site. It is akin to having a
room filled with millions of personal bulletin boards or "walls," the contents of
which are under the control of each and every user. In his or her bulletin
board, a user/owner can post anything––from text, to pictures, to music and
videos––access to which would depend on whether he or she allows one,
some or all of the other users to see his or her posts. Since gaining
popularity, the OSN phenomenon has paved the way to the creation of
various social networking sites, includingthe one involved in the case at bar,
www.facebook.com (Facebook), which, according to its developers, people
use "to stay connected with friends and family, to discover what’s going on in
the world, and to share and express what matters to them."28
Facebook connections are established through the process of "friending"
another user. By sending a "friend request," the user invites another to
connect their accounts so that they can view any and all "Public" and
"Friends Only" posts of the other.Once the request is accepted, the link is
established and both users are permitted to view the other user’s "Public" or
"Friends Only" posts, among others. "Friending," therefore, allows the user
to form or maintain one-to-one relationships with other users, whereby the
user gives his or her "Facebook friend" access to his or her profile and
shares certain information to the latter.29
To address concerns about privacy,30 but without defeating its purpose,
Facebook was armed with different privacy tools designed to regulate the
accessibility of a user’s profile31 as well as information uploaded by the user.
In H v. W,32 the South Gauteng High Court recognized this ability of the
users to "customize their privacy settings," but did so with this caveat:
"Facebook states in its policies that, although it makes every effort to protect
a user’s information, these privacy settings are not foolproof."33
For instance, a Facebook user canregulate the visibility and accessibility of
digital images(photos), posted on his or her personal bulletin or "wall,"
except for the user’sprofile picture and ID, by selecting his or her desired
privacy setting:
(a) Public - the default setting; every Facebook user can view the
photo;
(b) Friends of Friends - only the user’s Facebook friends and their
friends can view the photo;
(b) Friends - only the user’s Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends
and/or networks of the Facebook user; and
(d) Only Me - the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to
set up barriers to broaden or limit the visibility of his or her specific profile
content, statuses, and photos, among others, from another user’s point of
view. In other words, Facebook extends its users an avenue to make the
availability of their Facebook activities reflect their choice as to "when and to
what extent to disclose facts about [themselves] – and to put others in the
position of receiving such confidences."34 Ideally, the selected setting will be
based on one’s desire to interact with others, coupled with the opposing
need to withhold certain information as well as to regulate the spreading of
his or her personal information. Needless to say, as the privacy setting
40
becomes more limiting, fewer Facebook users can view that user’s particular
post.
STC did not violate petitioners’ daughters’ right to privacy
Without these privacy settings, respondents’ contention that there is no
reasonable expectation of privacy in Facebook would, in context, be correct.
However, such is not the case. It is through the availability of said privacy
tools that many OSN users are said to have a subjective expectation that
only those to whomthey grant access to their profile will view the information
they post or upload thereto.35
This, however, does not mean thatany Facebook user automatically has a
protected expectation of privacy inall of his or her Facebook activities.
Before one can have an expectation of privacy in his or her OSN activity, it is
first necessary that said user, in this case the children of petitioners,manifest
the intention to keepcertain posts private, through the employment of
measures to prevent access thereto or to limit its visibility. 36 And this
intention can materialize in cyberspace through the utilization of the OSN’s
privacy tools. In other words, utilization of these privacy tools is the
manifestation,in cyber world, of the user’s invocation of his or her right to
informational privacy.37
Therefore, a Facebook user who opts to make use of a privacy tool to grant
or deny access to his or her post orprofile detail should not be denied the
informational privacy right which necessarily accompanies said
choice.38Otherwise, using these privacy tools would be a feckless exercise,
such that if, for instance, a user uploads a photo or any personal information
to his or her Facebook page and sets its privacy level at "Only Me" or a
custom list so that only the user or a chosen few can view it, said photo
would still be deemed public by the courts as if the user never chose to limit
the photo’s visibility and accessibility. Such position, if adopted, will not only
strip these privacy tools of their function but it would also disregard the very
intention of the user to keep said photo or information within the confines of
his or her private space.
We must now determine the extent that the images in question were visible
to other Facebook users and whether the disclosure was confidential in
nature. In other words, did the minors limit the disclosure of the photos such
that the images were kept within their zones of privacy? This determination
is necessary in resolving the issue of whether the minors carved out a zone
of privacy when the photos were uploaded to Facebook so that the images
will be protected against unauthorized access and disclosure.
Petitioners, in support of their thesis about their children’s privacy right being
violated, insist that Escudero intruded upon their children’s Facebook
accounts, downloaded copies ofthe pictures and showed said photos to
Tigol. To them, this was a breach of the minors’ privacy since their Facebook
accounts, allegedly, were under "very private" or "Only Friends" setting
safeguarded with a password.39 Ultimately, they posit that their children’s
disclosure was only limited since their profiles were not open to public
viewing. Therefore, according to them, people who are not their Facebook
friends, including respondents, are barred from accessing said post without
their knowledge and consent. Aspetitioner’s children testified, it was
Angelawho uploaded the subjectphotos which were only viewable by the five
of them,40 although who these five are do not appear on the records.
Escudero, on the other hand, stated in her affidavit41 that "my students
showed me some pictures of girls cladin brassieres. This student [sic] of
mine informed me that these are senior high school [students] of STC, who
are their friends in [F]acebook. x x x They then said [that] there are still many
other photos posted on the Facebook accounts of these girls. At the
computer lab, these students then logged into their Facebook account [sic],
and accessed from there the various photographs x x x. They even told me
that there had been times when these photos were ‘public’ i.e., not confined
to their friends in Facebook."
In this regard, We cannot give muchweight to the minors’ testimonies for one
key reason: failure to question the students’ act of showing the photos to
Tigol disproves their allegation that the photos were viewable only by the five
of them. Without any evidence to corroborate their statement that the images
were visible only to the five of them, and without their challenging Escudero’s
claim that the other students were able to view the photos, their statements
are, at best, self-serving, thus deserving scant consideration.42
It is well to note that not one of petitioners disputed Escudero’s sworn
account that her students, who are the minors’ Facebook "friends," showed
her the photos using their own Facebook accounts. This only goes to show
that no special means to be able to viewthe allegedly private posts were ever
resorted to by Escudero’s students,43 and that it is reasonable to assume,
therefore, that the photos were, in reality, viewable either by (1) their
Facebook friends, or (2) by the public at large.
41
Considering that the default setting for Facebook posts is"Public," it can be
surmised that the photographs in question were viewable to everyone on
Facebook, absent any proof that petitioners’ children positively limited the
disclosure of the photograph. If suchwere the case, they cannot invoke the
protection attached to the right to informational privacy. The ensuing
pronouncement in US v. Gines-Perez44 is most instructive:
[A] person who places a photograph on the Internet precisely intends to
forsake and renounce all privacy rights to such imagery, particularly under
circumstances suchas here, where the Defendant did not employ protective
measures or devices that would have controlled access to the Web page or
the photograph itself.45
Also, United States v. Maxwell46 held that "[t]he more open the method of
transmission is, the less privacy one can reasonably expect. Messages sent
to the public at large inthe chat room or e-mail that is forwarded from
correspondent to correspondent loses any semblance of privacy."
That the photos are viewable by "friends only" does not necessarily bolster
the petitioners’ contention. In this regard, the cyber community is agreed that
the digital images under this setting still remain to be outside the confines of
the zones of privacy in view of the following:
(1) Facebook "allows the world to be more open and connected by
giving its users the tools to interact and share in any conceivable
way;"47
(2) A good number of Facebook users "befriend" other users who
are total strangers;48
(3) The sheer number of "Friends" one user has, usually by the
hundreds; and
(4) A user’s Facebook friend can "share"49 the former’s post, or
"tag"50 others who are not Facebook friends with the former, despite
its being visible only tohis or her own Facebook friends.
It is well to emphasize at this point that setting a post’s or profile detail’s
privacy to "Friends" is no assurance that it can no longer be viewed by
another user who is not Facebook friends with the source of the content. The
user’s own Facebook friend can share said content or tag his or her own
Facebook friend thereto, regardless of whether the user tagged by the latter
is Facebook friends or not with the former. Also, when the post is shared or
when a person is tagged, the respective Facebook friends of the person who
shared the post or who was tagged can view the post, the privacy setting of
which was set at "Friends."
To illustrate, suppose A has 100 Facebook friends and B has 200. A and B
are not Facebook friends. If C, A’s Facebook friend, tags B in A’s post, which
is set at "Friends," the initial audience of 100 (A’s own Facebook friends) is
dramatically increased to 300 (A’s 100 friends plus B’s 200 friends or the
public, depending upon B’s privacy setting). As a result, the audience who
can view the post is effectively expanded––and to a very large extent.
This, along with its other features and uses, is confirmation of Facebook’s
proclivity towards user interaction and socialization rather than seclusion or
privacy, as it encourages broadcasting of individual user posts. In fact, it has
been said that OSNs have facilitated their users’ self-tribute, thereby
resulting into the "democratization of fame."51Thus, it is suggested, that a
profile, or even a post, with visibility set at "Friends Only" cannot easily, more
so automatically, be said to be "very private," contrary to petitioners’
argument.
As applied, even assuming that the photos in issue are visible only to the
sanctioned students’ Facebook friends, respondent STC can hardly be taken
to task for the perceived privacy invasion since it was the minors’ Facebook
friends who showed the pictures to Tigol. Respondents were mere recipients
of what were posted. They did not resort to any unlawful means of gathering
the information as it was voluntarily given to them by persons who had
legitimate access to the said posts. Clearly, the fault, if any, lies with the
friends of the minors. Curiously enough, however, neither the minors nor
their parents imputed any violation of privacy against the students who
showed the images to Escudero.
Furthermore, petitioners failed to prove their contention that respondents
reproduced and broadcasted the photographs. In fact, what petitioners
attributed to respondents as an act of offensive disclosure was no more than
the actuality that respondents appended said photographs in their
memorandum submitted to the trial court in connection with Civil Case No.
CEB-38594.52 These are not tantamount to a violation of the minor’s
informational privacy rights, contrary to petitioners’ assertion.
In sum, there can be no quibbling that the images in question, or to be more
precise, the photos of minor students scantily clad, are personal in nature,
likely to affect, if indiscriminately circulated, the reputation of the minors
enrolled in a conservative institution. However, the records are bereft of any
evidence, other than bare assertions that they utilized Facebook’s privacy
42
settings to make the photos visible only to them or to a select few. Without
proof that they placed the photographs subject of this case within the ambit
of their protected zone of privacy, they cannot now insist that they have an
expectation of privacy with respect to the photographs in question.
Had it been proved that the access tothe pictures posted were limited to the
original uploader, through the "Me Only" privacy setting, or that the user’s
contact list has been screened to limit access to a select few, through the
"Custom" setting, the result may have been different, for in such instances,
the intention to limit access to the particular post, instead of being
broadcasted to the public at large or all the user’s friends en masse,
becomes more manifest and palpable.
On Cyber Responsibility
It has been said that "the best filter is the one between your children’s
ears."53 This means that self-regulation on the part of OSN users and
internet consumers ingeneral is the best means of avoiding privacy rights
violations.54 As a cyberspace communitymember, one has to be proactive in
protecting his or her own privacy.55 It is in this regard that many OSN users,
especially minors, fail.Responsible social networking or observance of the
"netiquettes"56 on the part of teenagers has been the concern of many due to
the widespreadnotion that teenagers can sometimes go too far since they
generally lack the people skills or general wisdom to conduct themselves
sensibly in a public forum.57
Respondent STC is clearly aware of this and incorporating lessons on good
cyber citizenship in its curriculum to educate its students on proper online
conduct may be mosttimely. Too, it is not only STC but a number of schools
and organizations have already deemed it important to include digital literacy
and good cyber citizenshipin their respective programs and curricula in view
of the risks that the children are exposed to every time they participate in
online activities.58 Furthermore, considering the complexity of the cyber
world and its pervasiveness,as well as the dangers that these children are
wittingly or unwittingly exposed to in view of their unsupervised activities in
cyberspace, the participation of the parents in disciplining and educating
their children about being a good digital citizen is encouraged by these
institutions and organizations. In fact, it is believed that "to limit such risks,
there’s no substitute for parental involvement and supervision." 59
As such, STC cannot be faulted for being steadfast in its duty of teaching its
students to beresponsible in their dealings and activities in cyberspace,
particularly in OSNs, whenit enforced the disciplinary actions specified in the
Student Handbook, absenta showing that, in the process, it violated the
students’ rights.
OSN users should be aware of the risks that they expose themselves to
whenever they engage incyberspace activities.1âwphi1 Accordingly, they
should be cautious enough to control their privacy and to exercise sound
discretion regarding how much information about themselves they are willing
to give up. Internet consumers ought to be aware that, by entering or
uploading any kind of data or information online, they are automatically and
inevitably making it permanently available online, the perpetuation of which
is outside the ambit of their control. Furthermore, and more importantly,
information, otherwise private, voluntarily surrendered by them can be
opened, read, or copied by third parties who may or may not be allowed
access to such.
It is, thus, incumbent upon internet users to exercise due diligence in their
online dealings and activities and must not be negligent in protecting their
rights. Equity serves the vigilant. Demanding relief from the courts, as here,
requires that claimants themselves take utmost care in safeguarding a right
which they allege to have been violated. These are indispensable. We
cannot afford protection to persons if they themselves did nothing to place
the matter within the confines of their private zone. OSN users must be
mindful enough to learn the use of privacy tools, to use them if they desire to
keep the information private, and to keep track of changes in the available
privacy settings, such as those of Facebook, especially because Facebook
is notorious for changing these settings and the site's layout often.
In finding that respondent STC and its officials did not violate the minors'
privacy rights, We find no cogent reason to disturb the findings and case
disposition of the court a quo.
In light of the foregoing, the Court need not belabor the other assigned
errors.
WHEREFORE, premises considered, the petition is hereby DENIED. The
Decision dated July 27, 2012 of the Regional Trial Court, Branch 14 in Cebu
City in SP. Proc. No. 19251-CEB is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
43
Jose Jesus M. Disini, JR., Rowena S. Disini, Lianne Ivy P. Medina, Janette
Toral and Ernesto Sonido, JR., Petitioners
vs
The Secretary of Justice, The Secretary of the Department of the Interior and
Local government, The Executive Director of the Information and
Communications Technology Office, The Chief of the Philippine National
Police, and The Director of the National Bureau of Investigation,
Respondents.
(The Disini Case) GR No. 203335 11 February 2014
Facts:
These consolidated petitions seek to declare several provisions of Republic
Act (RA) 10175, the Cybercrime Prevention Act of 2012, unconstitutional and
void.
The cybercrime law aims to regulate access to and use of the cyberspace.
The cyberspace is a boon to the need of a current generation for greater
information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to
use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another
or bully the latter by posting defamatory statements against him that people
can read.
And because linking with the internet opens up a user to communication
from others, the ill-motivated can use the cyberspace for committing theft by
hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations.
The wicked can use the cyberspace, too, for illicit trafficking in sex or for
exposing to pornography guileless children who have access to the internet.
For these reasons, the government has a legitimate right to regulate the use
of cyberspace and contain and punish wrongdoings. The government
certainly has the duty and the right to prevent these tomfooleries from
happening and punish their perpetrators, hence the Cybercrime Prevention
Act.
But petitioners claim that the means adopted by the cybercrime law for
regulating undesirable cyberspace activities violate certain of their
constitutional rights.
Pending hearing and adjudication of the issues presented in these cases, on
February 5, 2013, the Court extended the original 120-day temporary
restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law
until further order
ISSUES:
1. The petitioners contend that Section 4(a)(1) fails to meet the strict
scrutiny standard required of laws that interfere with the
fundamental rights of the people. Is Section 4(a)(1) on Illegal
Access unconstitutional?
2. Petitioners claim that Section 4(a)(3) suffers from overbreadth in
that, while is seeks to discourage data interference, it intrudes into
the area of protected speech and expression, creating a chilling and
deterrent effect on these guaranteed freedoms.
3. Petitioners claim that Section 4(a)(6) or cyber-squatting violates the
equal protection clause in that, not being narrowly tailored, it will
cause a user using his real name to suffer the same fate as those
who use aliases or take the name of another in satire, parody, or
any other literary device.
4. Petitioners claim that Section 4(b)(3) violates the constitutional
rights to due process and to privacy and correspondence, and
transgresses the freedom of the press.
5. Petitioners claim that cybersex violates the freedom of expression
clause of the Constitution.
6. Petitioners are wary that a person who merely doodles on paper
and imagines a sexual abuse of a 16-year old is not criminally liable
for producing child pornography but one who formulates the idea on
his laptop would be.
7. Is Section 4(c)(3) unconstitutional for penalizing the transmission of
unsolicited commercial communications?
Ruling:
44
8. Petitioners dispute the constitutionality of both the penal code
provisions on libel as well as Section4(c)(4) of the Cybercrime
Prevention Act on cyberlibel.
9. Petitioners assail the constitutionality of Section 5 that renders
criminally liable any person who wilfully abets or aids in the
commission or attempts to commit any of the offenses enumerated
as cybercrimes. It suffers from overbreadth, creating a chilling and
deterrent effect on protected expression.
10. Is Section 6 on the penalty of one degree higher constitutional?
11. Is Section 7 on the prosecution under both the Revised Penal Code
(RPC) and RA 10175 constitutional?
12. Is Section 8 valid and constitutional?
13. Is Section 12 on Real-Time collection of traffic data valid and
constitutional?
14. Is Section 13 on preservation of computer data valid and
constitutional?
15. Is Section 14 on disclosure of computer data valid and
constitutional?
16. Is Section 15 on search, seizure and examination of computer data
valid and constitutional?
17. Is Section 17 on destruction of computer data valid and
constitutional?
18. Is Section 19 on restricting or blocking access to computer data
valid and constitutional?
19. Is Section 20 on obstruction of justice valid and constitutional?
20. Is Section 24 on Cybercrime Investigation and Coordinating Center
(CICC) valid and constitutional?
21. Is Section 26(a) on CICC’s power and functions valid and
constitutional?
1. No. The strict scrutiny standard, an American constitutional
construct, is useful in determining the constitutionality of laws that
tend to target a class of things or persons. According to this
standard, a legislative classification that impermissibly interferes
with the exercise of fundamental right or operates to the peculiar
class disadvantage of a suspect class is presumed unconstitutional.
The Court finds nothing in Section 4(a)(1) that calls for the
application of the strict scrutiny standard since no fundamental
freedom, like speech, is involved in punishing what is essentially a
condemnable act – accessing the computer system of another
without right. It is a universally condemnable act.
2. Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved by
means that unnecessarily sweep its subject broadly, thereby
invading the area of protected speech. Section 4(a)(3) does not
encroach on these freedoms at all. It simply punishes what
essentially is a form of vandalism, the act of wilfully destroying
without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message.
Such act has no connection to guaranteed freedoms. Ergo, there is
no freedom to destroy other people’s computer systems and private
documents. All penal laws, like the cybercrime law, have of course
an inherent chilling effect, an in terrorem effect, or the fear of
possible prosecution that hangs on the heads of citizens who are
minded to step beyond the boundaries of what is proper. But to
prevent the State from legislating criminal laws because they instil
such kind of fear is to render the state powerless in addressing and
penalizing socially harmful conduct.
3. No, the challenge to the constitutionality of Section 4(a)(6) is
baseless. The law is reasonable in penalizing the act of acquiring
the domain name in bad faith to profit, mislead, destroy reputation,
or deprive others who are not ill-motivated of the rightful opportunity
of registering the same. It is the evil purpose for which one uses the
name that the law condemns.
4. No. In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine
whether a person has exhibited a reasonable expectation of privacy
and, if so, whether that expectation has been violated by
unreasonable government intrusion. The law punishes those who
45
acquire or use identifying information without right, implicitly to
cause damage. Petitioners fail to show how government effort to
curb computer-related identity theft violates the right to privacy and
correspondence as well as the right to due process. There is no
fundamental right to acquire another’s personal right. The Court has
defined intent to gain as an internal act which can be established
through overt acts of the offender, and it may be presumed from the
furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the
perpetrator. As such, the press, whether in the quest of news
reporting or social investigation, has nothing to fear since a special
circumstance is present to negate intent to gain which is required
by this Section.
5. The Court will not declare Section 4(c)(1) unconstitutional where it
stands a construction that makes it apply only to persons engaged
in the business of maintaining, controlling, or operating, directly or
indirectly, the lascivious exhibition of sexual organs or sexual
activity with the aid of a computer system as Congress has
intended.
6. The constitutionality of Section 4(c)(3) is not successfully
challenged. The law makes the penalty higher by one degree when
the crime is committed in cyberspace. But no one can complain
since the intensity or duration of penalty is a legislative prerogative
and there is a rational basis for such higher penalty.
7. Yes, because to prohibit the transmission of unsolicited ads would
deny a person the right to read his emails, even unsolicited
commercial ads addressed to him. Commercial speech is a
separate category of speech which us not accorded the same level
of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection. The
State cannot rob him of this right without violating the
constitutionally guaranteed freedom of expression. Thus,
unsolicited advertisements are legitimate forms of expression.
8. Since the penal code and implicitly, the cybercrime law, mainly
target libel against private persons, the Court recognizes that these
laws imply a stricter standard of malice to convict the author of a
defamatory statement where the offended party is a public figure.
The elements of libel are: (a) the allegation of a discreditable act or
condition concerning another; (b) publication of the charge; (c)
 identity of the person defamed; and (d) existence of malice.There is
actual malice or malice in fact when the offender makes the
defamatory statement with the knowledge that it is false or with
reckless disregard of whether it was false or not. The reckless
disregard standard used here required a high degree of awareness
of probable falsity. There must be sufficient evidence to permit the
conclusion that the accused in fact entertained serious doubts as to
the truth of the statement he published. Gross or even extreme
negligence is not sufficient to establish actual malice. The defense
of absence of actual malice, even when the statement turns out to
be false, is available where the offended party is a public official or
a public figure. But, where the offended party is a private individual,
the prosecution need not prove the presence of actual malice. For
his defense, the accused must show that he has a justifiable reason
for the defamatory statement even if it was in fact true.
9. A governmental purpose, which seeks to regulate the use of
cyberspace communication technology to protect a person’s
reputation and peace of mind, cannot adopt means that will
unnecessarily and broadly sweep, invading the area of protected
freedoms. If such means are adopted, self-inhibition borne of fear of
what sinister predicaments await internet users will suppress
otherwise robust discussion of public issues. Democracy will be
threatened and with it, all liberties. Penal laws should provide
reasonably clear guidelines for law enforcement officials and triers
of facts to prevent arbitrary and discriminatory enforcement. The
terms “aiding or abetting” constitute broad sweep that generates
chilling effect on those who express themselves through
cyberspace posts, comments, and other messages. Hence, Section
5 of the cybercrime law that punishes “aiding or abetting” libel on
the cyberspace is a nullity.
10. Yes, because there exists a substantial distinction between crimes
committed through the use of information and communication
technology and similar crimes committed using other means. In
using the technology in question, the offender often evades
identification and is able to reach far more victims or cause greater
harm.
11. The Court resolves to leave the determination of the correct
application of Section 7 that authorizes prosecution of the offender
46
under both the Revised Penal Code and Republic Act 10175 to
actual cases, with the exception of the crimes of:
1.
1. Online libel as to which, charging the offender
under both Section 4(c)(4) of Republic Act 10175
and Article 353 of the Revised Penal Code
constitutes a violation of the proscription against
double jeopardy; as well as
2. Child pornography committed online as to which,
charging the offender under both Section 4(c)(2)
of Republic Act 10175 and Republic Act 9775 or
the Anti-Child Pornography Act of 2009 also
constitutes a violation of the same proscription,
and, in respect to these, is void and
unconstitutional.
12. Valid and constitutional, because the matter of fixing penalties for
the commission of crimes is as a rule a legislative prerogative.
13. Void and unconstitutional, because Section 12 does not permit law
enforcement authorities to look into the contents of the messages
and uncover the identities of the sender and the recipient. Thus, the
authority that Section 12 gives law enforcement agencies is too
sweeping and lacks restraint.
14. Valid and constitutional, because the user ought to have kept a
copy of that data when it crossed his computer if he was so minded.
There was no undue deprivation of property since the data that
service providers preserve on orders of law enforcement authorities
are not made accessible to users by reasons of the issuance of
such orders.
15. Valid and constitutional, because what Section 14 envisions is
merely the enforcement of a duly issued court warrant. Disclosure
can be made only after judicial intervention.
16. Valid and constitutional, because Section 15 merely enumerates
the duties of law enforcement authorities that would ensure proper
collection, preservation, and use of computer system or data that
have been seized by virtue of a court warrant.
17. Valid and constitutional, because it is unclear that the user has a
demandable right to require the service provider to have that copy
of data saved indefinitely for him in its storage system.

18. Void and unconstitutional, because Section 19 not only precludes

any judicial intervention but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on
speech.

19. Valid and constitutional insofar as it applies to the provisions of

Chapter IV which are not struck down by the Court.

20. and 21. Valid and constitutional, because cybercrime law is

complete in itself when it directed the CICC to formulate and
implement a national cybersecurity plan. The law gave sufficient
standards for the CICC to follow when it provided a definition of
cybersecurity.

47