8torts

8/7/2019 8torts

1/42

San Beda College of Law215

MEMORYAIDIN CIVIL LAW

TORTS AND DAMAGES

I. TORTS

TORT An unlawful violation of privateright, not created by contract,and which gives rise to an actionfor damages. It is an act or omission producingan injury to another, without anyprevious existing lawful relationof which the said act or omissionmay be said to be a naturaloutgrowth or incident.

NOTES:

An unborn child is NOTentitled to damages. Butthe bereaved parentsmay be entitled todamages, on damagesinflicted directly uponthem. (Geluz vs. CA, 2SCRA 802)

Defendants in tort casescan either be natural or

artificial being.Corporations are civillyliable in the samemanner as naturalpersons.

Any person who has beeninjured by reason of atortious conduct can suethe tortfeasor.

The primary purpose of atort action is to providecompensation to aperson who was injuredby the tortious conductof the defendant.

Preventive remedy isavailable in some cases.

Classes of Torts:A. Negligent TortsB. Intentional TortsC. Strict Liability

A. NEGLIGENT TORTS

Involve voluntary acts or omissionswhich result in injury to otherswithout intending to cause the sameor because the actor fails to exercisedue care in performing such acts oromissions.

NEGLIGENCE The omission of that degree ofdiligence which is required by thenature of the obligation andcorresponding to the circumstancesof persons, time and place. (Article

1173 Civil Code)

Kinds of Negligence:1. Culpa Contractual (contractualnegligence) Governed by CC

provisions onObligations andContracts,particularly Arts.1170 to 1174 of theCivil Code.

2. Culpa Aquiliana (quasi-delict) Governed mainly by Art. 2176 of theCivil Code

3. Culpa Criminal (criminal negligence) Governed by Art. 365 of the RevisedPenal Code.

NOTES:

The 3 kinds of negligence furnishseparate, distinct, and independentbases of liability or causes of action.

A single act or omission may give riseto two or more causes of action.

Culpa Contractual Culpa AquilianaThe foundation ofthe liability of thedefendantis the contract

It is a separatesource of obligationindependent ofcontract

CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma.RhodoraFerrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease),John StephenQuiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), AnthonyPurganan(LTD),Ma. Ricasion Tugadi (Conflicts of Law)

8/7/2019 8torts

2/42

216 2005 CENTRALIZED BAROPERATIONS

In breach of contractcommitted throughthe negligence ofemployee, the

employer cannoterase his primary anddirect liability byinvoking exercise ofdiligence of a goodfather of a family inthe selection andsupervision of theemployee.

In quasi-delict thepresumptiveresponsibility for thenegligence of hisservants can be

rebutted by proof ofthe exercise of duecare in their selectionand supervision.

Culpa Aquiliana CrimeOnly involves privateconcern

Affect the publicinterest

The Civil Code bymeans of indem-nification merelyrepairs the damage

The Revised PenalCode punishes orcorrects criminal act

Includes all acts inwhich any kind offault or negligenceintervenes

Punished only if thereis a penal law clearlycovering them

Liability is direct andprimary in quasi-delict

Liability of theemployer of theactor-employee issubsidiary in crimes

QUASI-DELICT

Whoever by act or omission causesdamage to another, there being faultor negligence is obliged to pay forthe damage done. (Article 2176 CivilCode)

Essential Requisites for a quasi-delictual action:1. Act or omission constituting fault or

negligence;

2. Damage caused by the said act oromission; and

3. Causal relation between the damage

and the act or omission.

Tests of Negligence1. Did the defendant in doing the

alleged negligent act use thereasonable care and caution whichan ordinarily prudent person wouldhave used in the same situation? If not then he is guilty of

negligence.2. Could a prudent man, in the case

under consideration, foresee harm asa result of the course pursued?

If so, it was the duty of the actorto take precautions to guardagainst harm.

NOTES: Negligence is a conduct - the

determination of the existence ofnegligence is concerned with whatthe defendant did or did not do The state of mind of the actor isnot important; good faith or use ofsound judgment is immaterial. Theexistence of negligence in a givencase is not determined by referenceto the personal judgment but by thebehavior of the actor in the situation

before him. (Picart vs. Smith) Negligence is a conduct that creates

an undue risk of harm to others.

The determination of negligence is aquestion of foresight on the part ofthe actor FORESEABILITY. Even if a particular injury was

not foreseeable, the risk is stillforeseeable if possibility ofinjury is foreseeable. Forseeability involves thequestion of PROBABILITY, that is,the existence of some reallikelihood of some damage andthe likelihood is of suchappreciable weight reasonably toinduce, action to avoid it.

Calculation of Risk Interests are to be balanced only inthe sense that the purposes of theactor, the nature of his act and theharm that may result from action orinaction are elements to beconsidered.

Circumstances to consider indetermining negligence: (PEST-GAP)

1. Time2. Place3. Emergency Emergency rule

GENERAL RULE: An individual whosuddenly finds himself in a situationof danger and is required to actwithout much time to consider thebest means that may be adopted toavoid the impending danger is not

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEEAND SUBJECT CHAIRPERSONSMaricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), YolandaTolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics). Jonathan

Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (CommercialLaw), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

8/7/2019 8torts

3/42



guilty of negligence if he fails toundertake what subsequently andupon reflection may appear to be abetter solution.

EXCEPTION: When the emergencywas brought by the individuals ownnegligence. (Valenzuela vs. CA 253SCRA 303).

4. Gravity of Harm to beavoided

5. Alternative Course of Action If the alternativepresented to the actor is toocostly, the harm that may resultmay be still be consideredunforeseeable to a reasonableman.

6. Social value or utility ofactivity

7. Person exposed to the risk

GOOD FATHER OF A FAMILY (paterfamilias):- this is the standard of conduct used inthe Philippines- a man of ordinary intelligence andprudence or an ordinary reasonableprudent mana reasonable man deemed to haveknowledge of the facts that a man should

be expected to know based on ordinaryhuman experience. (PNR vs IAC, 217SCRA 409)- a prudent man who is expected to knowthe basic laws of nature and physics, e.g.gravity.

SPECIAL RULES1. Children The action of the child will notnecessarily be judged according tothe standard of an adult. But if the

minor is mature enough tounderstand and appreciate thenature and consequence of hisactions, he will be considerednegligent if he fails to exercise duecare and precaution in thecommission of such acts.

NOTES:

The law fixes no arbitrary age atwhich a minor can be said to havethe necessary capacity to understand

and appreciate the nature andconsequence of his acts. (Taylor vs.Meralco, 16 Phil 8)

Applying the provisions of the

Revised Penal Code, Judge Sangcotakes the view that a child who is 9or below is conclusively presumed tobe incapable of negligence. In theother hand, if the child is above 9years but below 15, there is adisputable presumption of absenceof negligence.

Absence of negligence does notnecessarily mean absence ofliability.

Liability without fault: a child under

9 years can still be subsidiarily liablewith his property (Art. 100, RPC)

Absence of negligence of the childmay not excuse the parents fromtheir vicarious liability under Art.2180 NCC or Art. 221 FC.

2. Physical Disability Mere weakness of a person willnot be an excuse in negligencecases. However if defect amounts to areal disability the standard ofconduct is that of a reasonableperson under like disability.

3. Experts and professionals They should exhibit the care andskill of one who is ordinarilyskilled in the particular field thathe is in. When a person holds himself outas being competent to do thingsrequiring professional skill, hewill be held liable for negligence

if he fails to exhibit the care andskill of one ordinarily skilled inthe particular work which heattempts to do. An expert will not be judgedbased on what a non-expert canforesee. The rule regarding experts isapplicable not only toprofessionals who haveundergone formal education.


8/7/2019 8torts

4/42


4. Nature of activity There are activities which bynature impose duties to exercisea higher degree of diligence.

Examples:a. Banks, by the very

nature of their work, areexpected to exercise thehighest degree ofdiligence in the selectionand supervision of theiremployees.

b. Common carriers arerequired to exerciseextraordinary diligencein the vigilance overtheir passengers andtransported goods.(Article 1733 Civil Code).

5. Intoxication

GENERAL RULE: Mere intoxication isnot negligence, nor does the mere factof intoxication establish want of ordinarycare. But it may be one of thecircumstances to be considered to provenegligence.

EXCEPTION: Under Art. 2185 of theCivil Code, it is presumed that a person

driving a motor vehicle has beennegligent if at the time of the mishap,he was violating any traffic regulation.

6. Insanity The insanity ofa person doesnot excuse himor his guardianfrom liabilitybased on quasi-delict. Bases forholding aninsane personliable for histort:

a.Where one of two innocent personsmust suffer a loss, it should beborne by the one who occasionedit.

b. To induce those interested in theestate of the insane person torestrain and control him.

c.The fear that an insanity wouldlead to false claims of insanityand avoid liability.

7. Women In determining thequestion of contributorynegligence in performingsuch act, the age, sex,and condition of thepassengers arecircumstancesnecessarily affecting thesafety of the passenger,and should beconsidered. (Cangco vs.Manila Railroad Co. GR

No.12191, October 14,1918) Although there is nounequivocal statement ofthe rule, Valenzuela vs.CA 253SCRA303 appearsto require a differentstandard of care forwomen under thecircumstances indicatedtherein. However, Dean GuidoCalabresi believes thatthere should be auniform standardbetween a men and awomen.

Other Factors to Consider inDetermining Negligence:A. VIOLATION OF RULES AND

STATUTES1. Statutes

GENERAL RULE: Violation of astatutory duty is NEGLIGENCE PER SE

(Cipriano vs. CA, 263SCRA711). When theLegislature has spoken, the standard ofcare required is no longer what areasonably prudent man would do underthe circumstances but what theLegislature has commanded.

EXCEPTIONS:a. When unusual conditionsoccur and strict observance maydefeat the purpose of the rule andmay even lead to adverse results.b. When the statuteexpressly provides that violation of



8/7/2019 8torts

5/42



a statutory duty merely establishesa presumption of negligence.

NOTE: Rule as to proof of proximate

causeGENERAL RULE: Plaintiff must showthat the violation of the statute is theproximate or legal cause of the injuryor that it substantially contributedthereto. (Sanitary Steam Laundry, Inc.vs. CA 300SCRA20)

EXCEPTION: In cases where thedamage to the plaintiff is the damagesought to be prevented by the statute.In such cases, proof of violation ofstatute and damage to the plaintiffmay itself establish proximate cause.

(Teague vs. Fernandez 51SCRA181).

2.Administrative Rule Violation of arulepromulgatedbyadministrativeagencies is notnegligence perse but may beEVIDENCE OFNEGLIGENCE.

3.Private Rules of Conduct. Violation ofrules imposedby privateindividuals(e.g.employers) ismerely aPOSSIBLEEVIDENCE OFNEGLIGENCE.

B. PRACTICE AND CUSTOM Compliance with the practice andcustom in a community will notautomatically result in a findingthat the actor is not guilty ofnegligence. Non-compliance withthe practice or custom in thecommunity does not necessarilymean that the actor was negligent. In Yamada vs. Manila Railroad Co.,the owner of an automobile struck

by a train while crossing the trackssought to establish absence ofnegligence of its driver byevidence of a custom of

automobile drivers of Manila bywhich they habitually drove theircars over the railroad crossingswithout slackening speed. The SCrejected the argument by rulingthat: a practice which is dangerousto human life cannot ripen intocustom which will protect anyonewho follows it.

C. COMPLIANCE WITH STATUTES Compliance with a statute is notconclusive that there was no

negligence. Example: A defendant can still beheld liable for negligence even ifhe can establish that he wasdriving below the speed limit.Compliance with the speed limit isnot conclusive that he was notnegligently driving his car.

Gross Negligence - Negligence wherethere is want of even slight care anddiligence.

PROOF OF NEGLIGENCE

GENERAL RULE: If the plaintiff alleged in hiscomplaint that he was damagedbecause of the negligent acts ofthe defendant, the plaintiff hasthe burden of proving suchnegligence. (Taylor vs.MERALCO 16Phil8) The quantum of proof required ispreponderance of evidence.(Rule 133 Revised Rules ofCourt)

EXCEPTIONS: Exceptional cases whenthe rules or the law provides for caseswhen negligence is presumed.A. Presumptions of NegligenceB. Res Ipsa Loquitur

A. Presumptions of Negligence

1. In motor vehiclemishaps, the owner ispresumed negligent if hewas in the vehicle and he


8/7/2019 8torts

6/42


could have used duediligence to prevent themisfortune. (Article 2184Civil Code)

2. It is disputably presumedthat a driver wasnegligent if he had beenfound guilty of recklessdriving or violatingtraffic regulations atleast twice for the nextpreceding two months.(Article 2184 Civil Code)

3. The driver of a motorvehicle is presumednegligent if at the timeof the mishap, he wasviolating any trafficregulation. (Article 2185Civil Code)

4. GENERAL RULE: Primafacie presumption ofnegligence of thedefendant arises if deathor injury results from hispossession of dangerousweapons or substance.

EXCEPTION: When such possession oruse is indispensable to his occupation or

business. (Article 2188 Civil Code)5. GENERAL RULE:

Presumption ofnegligence of thecommon carrier arises incase of loss, destructionor deterioration of thegoods, or in case ofdeath or injury ofpassengers.

EXCEPTION: Upon proof of exercise ofextraordinary diligence.

B. Res Ipsa Loquitur The thing or transaction speaksfor itself. It is a rule of evidence peculiarto the law of negligence whichrecognizes that prima facienegligence may be established inthe absence of direct proof, andfurnishes a substitute for specificproof of negligence.

Requisites of Res Ipsa Loquitor:1. The accident was of a kind whichordinarily does not occur in the

absence of someones negligence;2. The instrumentality whichcaused the injury was under theexclusive control and management ofthe person charged with negligence;and3. The injury suffered must nothave been due to any voluntaryaction or contribution on the part ofthe person injured; absence ofexplanation by the defendant.

In Africa vs. Caltex (Phil.) Inc.Mar 31, 1966, defendant Caltexwas liable for damage done tothe property of its neighborswhen fire broke out in a Caltexservice station. The gasolinestation, with all its appliances,equipment and employees, wasunder the control of thedefendant. The persons whoknew how the fire started werethe defendant and itsemployees, but they gave no

explanation whatsoever. The doctrine is not applicable ifthere is direct proof of absenceor presence of negligence. (S.D.Martinez, et al vs. William VanBuskirk)

AFFIRMATIVE DUTIES ANDMISCELLANEOUS ACTIVITIES:1. Duty to Rescue

A. Duty to the rescuer The defendants are liable forthe injuries to persons who

rescue people in distressbecause of the acts oromissions of the saiddefendants. There is liability to therescuer and the law does notdiscriminate between therescuer oblivious to the periland the one who counts thecosts. The risk of rescue, if only notwanton, is born of theoccasion.



8/7/2019 8torts

7/42



One who was hurt trying torescue another who wasinjured through negligencemay recover damages.

(Santiago vs. De leon CA-GRNo.16180-R March 21, 1960) Danger of personal injury ordeath.

B. Duty to rescue

GENERAL RULE: There is no generalduty to rescue; a person is not liable forquasi-delict even if he did not help aperson in distress.

EXCEPTIONS: A limited duty to rescueis imposed in certain cases:Abandonment of persons in danger andabandonment of ones own victim isconsidered, under certain circumstancesas a crime against security (Article 275RPC); andNo driver of a motor vehicle concernedin a vehicular accident shall leave thescene of the accident without aiding thevictim unless he is excused from doing

so. (Section 55 RA 4136 [LandTransportation and traffic Code])

2. Owners, Proprietors and Possessorsof Property

GENERAL RULE: The owner has no dutyto take reasonable care towards atrespasser for his protection or even toprotect him from concealed danger.NOTE: Damage to any person resultingfrom the exercise of any rights ofownership is damage without injury(Damnum absque injuria)

EXCEPTIONS:a. Visitors and tolerated possession The owner is still liable if theplaintiff is inside his property bytolerance or by implied permission. Owners of buildings orpremises owe duty of care tovisitors.

Doctrine of Attractive NuisanceOne who maintains on his premisesdangerous instrumentalities orappliances of a character likely to

attract children in play, and whofails to exercise ordinary care toprevent children from playingtherewith or resorting thereto, isliable to a child of tender years whois injured thereby, even if the childis technically a trespasser in thepremises.NOTE: A swimming pool or pond orreservoir of water is NOT consideredattractive nuisance. (HidalgoEnterprises vs. Baladan 91 Phil 488)

State of Necessity

The owner of a thing has no right toprohibit the interference of anotherwith the same if the interference isnecessary to avert imminent dangerand the threatened damage,compared to the damage arising tothe owner from the interference, ismuch greater. (Article 432 CivilCode) It is also a recognized justifyingcircumstance under the RPC. In both the Civil Code and theRPC, the owner may demand from

the person benefited, indemnity forthe damages.

Use of properties that injures another An owner cannot use his propertyin such a manner as to injure therights of others. (Article 431Civil Code). Hence the exercise of the rightof the owner may give rise to anaction based on quasi-delict ifthe owner negligently exercises

such right to the prejudice ofanother.

Liability of Proprietors of buildings New Civil Code include provisionsthat apply to proprietors of abuilding or structure whichinvolve affirmative duty of duecare in maintaining the same:Articles 2190 and 2191. Third persons who suffereddamages may proceed only


8/7/2019 8torts

8/42


against the engineer or architector contractor if the damagereferred to in Articles 2190 and2191should be a result of any

defect in construction. Nevertheless, actions fordamages can still be maintainedunder Article 2176 for damagesresulting from proprietorsfailure to exercise due care inthe maintenance of his buildingand that he used his property insuch a way that he injured theproperty of another.

3. Employers and EmployeesA. Employers

Actions for quasi-delict canstill be maintained even ifemployees compensation is providedfor under the Labor Code. In quasi-delictual actionsagainst the employer, the employeemay use the provisions of the LaborCode which imposes upon theemployer certain duties with respectto the proper maintenance of thework place or the provisions ofadequate facilities to ensure thesafety of the employees.

Articles 1711 and 1712 ofthe Civil Code impose liabilitywithout fault on the part of theemployers.

B. Employees Employees are bound to exercise duecare in the performance of theirfunctions for the employers; absencesuch due care, the employee may beheld liable.

4. Banks The business of banks is oneaffected by public interest.Because of the nature of itsfunctions, a bank is underobligation to treat theaccounts of its depositors withmeticulous care, alwayshaving in mind the fiduciarynature of their relationship.(PBC vs. CA [1997])

5. Common carriers

From the nature of theirbusiness and for reasons ofpublic policy, they are boundto exercise extraordinary

diligence in the vigilance overthe goods and the safety of thepassengers. The case against the commoncarrier is for the enforcementof an obligation arising frombreach of contract. The same act which breachedthe contract may give rise toan action based on quasidelict. (Air France vsCarrascoso, L21438, Sept. 28,1996)

6. DoctorsA. STANDARD OF CARE The proper standard is

whether, the physician if ageneral practitioner, hasexercised the degree of careand skill of the averagequalified practitioner, takinginto account the advances inthe profession. A physician who holds himselfout as a specialist should beheld to the standard of careand skill of the averagemember of the professionpracticing the specialty, takinginto account the advances inthe profession.

B. THE CAPTAIN OF THE SHIP DOCTRINE The head surgeon is madeliable for everything that goeswrong within the four cornersof the operating room.

It enunciates the liability ofthe surgeon not only for thewrongful acts of those underhis physical control but alsothose wherein he has extensionof control.

C. NOT WARRANTORS Physicians are not warrantorsof cures or insurers againstpersonal injuries or death ofthe patient.

D. PROOF



8/7/2019 8torts

9/42



Expert testimony should beoffered to prove that thecircumstances are constitutiveof conduct falling below the

standard of care employed byother physicians in goodstanding when performing thesame operation. Medical malpractice can alsobe established by relying onthe doctrine of res ipsaloquitor; in which case theneed of expert testimony isdispensed with because theinjury itself provides the proofof negligence. (Ramos vs. CA,GR No.124354, December 29,1999) Example: The doctrine wasapplied in a case of removal ofthe wrong part of the bodywhen another part wasintended.

Two pronged evidence:a. Evidence as to therecognized standards of the medicalcommunity in the particular kind ofcase; and

b. A showing that thephysician departed from thisstandard in his treatment. Four elements

in medicalnegligencecases: duty,breach, injuryand proximatecausation

E. LIABILITY OF HOSPITALS ANDCONSULTANTS

There is no employer-employeerelationship between thehospital and a physicianadmitted in the said hospitalsmedical staff as an active orvisiting consultant which wouldhold the hospital liable solidarilyliable for the injury suffered by apatient under Article 2180 of theCivil Code. (Ramos vs. CA GR No124354, April 11, 2002)

The contract between theconsultant and the patient isseparate and distinct thecontract between the hospital

and the patient. The first hasfor its object the rendition ofmedical services by theconsultant to the patient, whilethe second concerns theprovision by the hospital offacilities and services by its staffsuch as nurses and laboratorypersonnel necessary for theproper treatment of the patient.(Ramos vs. CA GR No 124354,April 11, 2002)

7. Lawyers An attorney is not bound toexercise extraordinarydiligence but only a reasonabledegree of care and skill, havingreference to the business heundertakes to do.

DEFENSES IN NEGLIGENCE CASESKinds of defenses:A. Complete completely bars

recoveryB. Partial mitigates liability

1. PLAINTIFFS CONDUCT ANDCONTRIBUTORY NEGLIGENCE

a. Plaintiffs ownnegligence as the proximatecause When the plaintiffs ownnegligence was the immediate andproximate cause of his injury, hecannot recover damages. (Article2179 Civil Code)b. Contributory

negligence Conduct on the part of theinjured party contributing as alegal cause to the harm he hassuffered which falls below thestandard to which he is required toconform for his own protection.(Valenzuela vs. CA 253SCRA303) If the plaintiffs negligence wasonly contributory, the immediateand proximate cause of the injurybeing the defendants lack of due


8/7/2019 8torts

10/42


care, the plaintiff may recoverdamages but the courts shallmitigate the damages to beawarded (Article 2179 Civil Code).

Doctrine of ComparativeNegligence The

relative degree of negligence ofthe parties is considered indetermining whether and to whatdegree, either should beresponsible for his negligence(apportionment of damages).

This is

the doctrine being applied in ourjurisdiction wherein the

contributory negligence of theplaintiff does not completely barrecovery but merely results inmitigation of liability; it is a partialdefense.

The

court is free to determine theextent of the mitigation of thedefendants liability dependingupon the circumstances.

2. IMPUTED CONTRIBUTORYNEGLIGENCE

Negligence is imputed if theactor is different from the personwho is being made liable. The defendant will besubject to mitigated liability even ifthe plaintiff was not himselfpersonally negligent but because thenegligence of another is imputed tothe plaintiff. It is applicable if thenegligence was on the part of theperson for whom the plaintiff isresponsible, and especially, bynegligence of an associate in thetransaction where he was injured.

3. FORTUITOUS EVENTS Essential requisites:a.The cause of the unforeseen andunexpected occurrence, or of thefailure of the debtor to complywith his obligation, must beindependent of the human will;b. It must be impossible toforesee the event which

constitutes the caso fortuito, or

if it can be foreseen, it must beimpossible to avoid;

c.The occurrence must be such asto render it impossible for the

debtor to fulfill his obligation in anormal manner; andd. The obligor must be freefrom any participation in theaggravation of the injury resultingto the creditor.

NOTE: When an act of God concurswith the negligence of defendant toproduce an injury, the defendant isliable if the injury would not haveresulted but for his own negligentconduct or omission. The wholeoccurrence is humanized and removed

from the rules applicable to acts ofGod. (NAPOCOR vs. CA [1993])

GENERAL RULE: It is a completedefense and a person is not liable ifthe cause of the damage is a fortuitousevent.

EXCEPTION: It is merely a partialdefense and the courts may mitigatethe damages if the loss would haveresulted in any event (Art. 2215(4)Civil Code).

4. ASSUMPTION OF RISK Volenti non fit injuria: One is notlegally injured if he has consentedto the act complained of or waswilling that it should occur. It is a complete defense. Elements:

a. The plaintiff must know thatthe risk is present;

b. He must further understandits nature; and that

c. His choice to incur it is freeand voluntary.

KINDS:a. Express

waiver ofthe rightto recover

There is assumption

of risk if theplaintiff, in advancehas expressly waivedhis right to recoverdamages for thenegligent act of the

defendant.



8/7/2019 8torts

11/42



NOTE: A person cannot contract away hisright to recover damages resulting fromnegligence. Such waiver is contrary topublic policy and cannot be allowed.

However, the waiver contemplated bythis prohibition is the waiver of the rightto recover before the negligent act wascommitted.

If waiver was made after the causeof action accrued, the waiver is valid andmay be construed as a condonation ofthe obligation.

b. ImpliedAssumptions

i. Dangerous Conditions

A person who, knowing that heis exposed to a dangerous conditionvoluntarily assumes the risk of suchdangerous condition may not recoverfrom the defendant who maintainedsuch dangerous conditions. Example: A person who main-tained his house near a railroad trackassumes the usual dangers attendantto the opera-tion of a locomotive.(Rodrigueza vs. Manila Railroad Co.,GR No. 15688, Nov. 19, 1921).

ii. Contractual Relations There may be impliedassumption of risk if the plaintiffentered into a contractual relationwith the defendant. By entering intoa relationship freely and voluntarilywhere the negligence of thedefendant is obvious, the plaintiffmay be found to accept and consentto it. EXAMPLES:

a) The employees assume theordinary risks inherent in the

industry in which he is employed.- As to abnormal risks, there

must be cogent and convincingevidence of consent.

b) When a passenger boards acommon carrier, he takes the risksincidental to the mode of travel hehas taken.

iii. Dangerous Activities Persons who voluntarilyparticipate in dangerous activities

assume the risks which are usuallypresent in such activities. EXAMPLE: A professionalathlete is deemed to assume the

risks of injury to their trade.iv. Defendants negligence When the plaintiff is aware of

the risk created by the defendantsnegligence, yet he voluntarilydecided to proceed to encounter it,there is an implied admission. EXAMPLE: If the plaintiff hasbeen supplied with a product whichhe knows to be unsafe, he is deemedto have assumed the risk of usingsuch unsafe product.

5. DEATH OF THE DEFENDANT Death of the defendant does notextinguish the obligation basedon quasi-delict. An action survives even if thedefendant dies during thependency of the case if the caseis an action to recover for aninjury to persons or property byreason of tort committed by thedeceased. It is no defense at all.

6. PRESCRIPTION An action based on quasi-delictprescribes in four years from thedate of the accident. (Article1146 Civil Code)

Relations Back Doctrine An act done at one time isconsidered by fiction of law to havebeen done at some antecedentperiod. (Allied Banking Corp vs. CA,1989)

EXAMPLE: A doctor negligentlytransfused blood to a patient thatwas contaminated with HIV. If theeffect became apparent only afterfive (5) years, the four (4) yearprescriptive period should commenceonly when it was discovered.

7. INVOLUNTARINESS It is a complete defense in quasi-delict cases and the defendant istherefore not liable if force was


8/7/2019 8torts

12/42


exerted on him. (Aquino, Tortsand Damages) EXAMPLE: When the defendantwas forced to drive his vehicle by

armed men. He was, at pain ofdeath, forced to drive at a veryfast clip because the armed menwere escaping from thepolicemen. The defendantcannot be held liable, if abystander is hit as aconsequence.

CAUSATION

Proximate Cause That cause which in natural andcontinuous sequence, unbrokenby any efficient interveningcause, produces the injury,without which the result wouldnot have occurred.

Remote Cause That cause which someindependent force merely tookadvantage of to accomplishsomething not the natural effectthereof.

Nearest Cause That cause which is the last linkin the chain of events; thenearest in point of time orrelation. Proximate cause is notnecessarily the nearest causebut that which is the procuringefficient and predominantcause.

Concurrent Causes The actor is liable evenif the active andsubstantiallysimultaneous operationof the effects of a thirdpersons innocent,tortious or criminal actis also a substantialfactor in bringing aboutthe harm so long as theactors negligentconduct actively andcontinuously operate to

bring about harm to

another. (Africa vs.Caltex) Where several causesproducing the injury are

concurrent and each isan efficient causewithout which the injurywould not havehappened, the injurymay be attributed to allor any of the causes andrecovery may be hadagainst any or all of theresponsible persons. Where the concurrent orsuccessive negligentacts or omissions of twoor more persons,although actingindependently, are incombination the directand proximate cause ofa single injury to a thirdperson, and it isimpossible to determinewhat proportion eachcontributed to theinjury, either of them isresponsible for the

whole injury, eventhough his act alonemight not have causedthe entire injury; theybecome joint tort-feasors and aresolidarily liable for theresulting damage underArticle 2194 of the CivilCode.

NOTE: Primary cause remains theproximate cause even if there is an

intervening cause which merelycooperated with the primary cause andwhich did not break the chain ofcausation.

Tests of Proximate Cause Two-part test1. Cause-in-fact Test2. Policy Test

NOTE: In determining the proximatecause of the injury, it is first necessaryto determine if the defendantsnegligence was the cause-in-fact of the



8/7/2019 8torts

13/42



damage to the plaintiff. (Cause-in-facttest) If the

defendants negligence was not

the cause-in-fact, the inquirystops. If it is, the

inquiry shifts to the question of limitof the defendants liability. (Policytest)

CAUSE-IN-FACT TESTS:1. But-For Test The defendants conduct is the

cause-in-fact if damage wouldnot have resulted had there beenno negligence on the part of the

defendant. Conversely,defendants negligent conduct isnot the cause in fact of theplaintiffs damage if theaccident could not have beenavoided in the absence thereof.

2. Substantial Factor test The conduct is the cause-in-factof the damage if it was asubstantial factor in producingthe injuries. In order to be a substantialfactor in producing the harm,the causes set in motion by thedefendant must continue untilthe moment of the damage or atleast down the setting in motionof the final active injurious forcewhich immediately produced orpreceded the damage.

NOTE: If the defendants conduct wasalready determined to be the cause infact of the plaintiffs damage under thebut for test, it is necessarily the cause infact of the damage under the substantialfactortest.

3. NESS Test The candidate condition may stillbe termed as a cause where it isshown to be a necessary elementin just one of several co-presentcausal set each independentlysufficient for the effect.

Two ways by which co-presence maymanifest itself:

a. Duplicative causation When two or more sets operatesimultaneously to produce theeffect; the effect is over-determined.b. Pre-emptive causation When, though coming about firstin time, one causal set trumpsanother potential set lurking in thebackground; the causal potency ofthe latter is frustrated.

Multiple causation If there are a number ofcandidate conditions, which,taken one at a time, would notin fact have been sufficient tocause the accident and theaccident was a cumulative effectof all the candidate conditions.

Policy Tests:1. Foreseeability Test2. Naturaland Probable Consequence Test3. Natural

and Ordinary or Direct ConsequenceTest4. HindsightTest5. Orbit of Risk Test

6. Substantial FactorTest

Policy Tests may be divided into TwoGroups:

1. FORESIGHT PERSPECTIVE/

FORESEEABILITY TESTS The defendant is not liable forthe unforeseeable consequencesof his acts Liability is limited within the riskcreated by defendants negligentacts.

2. DIRECT PERSEPECTIVE/ DIRECTCOSEQUENCES TESTS The defendant

is liable for


8/7/2019 8torts

14/42


damages whichare beyond therisk. Directconsequencesare thosewhich follow insequence fromthe effect ofdefendants actuponconditionsexisting andforces alreadyin operation atthe timewithout

intervention ofany externalforces, whichcome intoactiveoperationlater.

Tests applied in the Philippines: New Civil Code has achapter on Damageswhich specifies the kindof damage for which thedefendant may be heldliable and the extent ofdamage to be awardedto the plaintiff.

Cause-in-fact Tests:1. But-for test2. Substantial

Factor test3. NESS test Policy

test:The

directnessapproach isbeingappliedin thisjurisdiction.

NOTE: The definition of proximate causewhich includes the element of foresightis not consistent with the express

provision of the Article 2202 of the NewCivil Code; a person may be held liablewhether the damage to the plaintiff maybe unforeseen.

Cause and Conditions It is no longer practicable todistinguish between cause andcondition. The defendant may be liable even ifonly created conditions, if theconditions resulted in harm to eitherperson or property. EXAMPLES ofDangerous Conditions:

1. Those that areinherentlydangerous

2. Those where aperson places athing which isnot dangerous initself in adangerousposition.

3. Those involvingproducts andother thingswhich aredangerousbecause they are

defective.

Efficient Intervening Cause One which destroys the causalconnection between thenegligent act and the injury andthereby negatives liability. There is NO efficient interveningcause if the force created by thenegligent act or omission haveeither:

1. Remained active itself, or

2. Created another force whichremained active until it directlycaused the result, or3. Created a new active risk ofbeing acted upon by the active forcethat caused the result.

EXAMPLE: The medical findings, showthat the infection of the wound bytetanus was an efficient interveningcause later or between the time Javierwas wounded to the time of his death.(People vs. Rellin 77 Phil 1038)

NOTES:



8/7/2019 8torts

15/42



A cause

is not anintervening cause

if it wasalreadyinoperation at thetime thenegligentact iscommitted.

Foreseeableintervening causescannotbeconsideredsufficientinterveningcauses.

Theintervention of

unforeseen andunexpected causeis notsufficienttorelievethewrongdoer fromconsequences of

negligence if suchnegligencedirectlyandproximatelycooperates withtheindepend

entcause intheresulting

injury.

CONTRIBUTORY NEGLIGENCEA. Plaintiffs negligence is

the cause Plaintiffsnegligence isnot contributoryif it is necessaryand sufficient toproduce theresult. EXAMPLES:

1. Only theplaintiffwasnegligent.

2. Defendantsnegligence is not apart ofthecausal

set whichis a partof thecausalchain.

3. Plaintiffsnegligence waspre-emptiveinnature.

B. Compound Causes Plaintiff


8/7/2019 8torts

16/42


s

ne

gligence

may

have

duplica

tive

effect,

that

it,

it

is

s

ufficient

to

bring

about

the

effect

b

ut

his

neglig



8/7/2019 8torts

17/42



ence

occurs

simultaneously

wi

th

the

defend

ant;

the

la

tter

s

negligence

is

equally

sufficient

bu

t

not

neces


8/7/2019 8torts

18/42


sary

to

bring

ab

out

the

effec

t

because

da

mage

would

st

illh

ave

resulted

due

to

the

n

egligence

of

the

plaintif



8/7/2019 8torts

19/42



f. Pl

aintiffsneg

ligenceisnotmerelycon

tributorybec

ause

itisaconc

urringproxim

atecause. No

recovery

ca


8/7/2019 8torts

20/42


n

be

had.

(Aquin

o,

Torts

and

Damages)

C. Part of the same causalset Neither plaintiffs negligence

nor defendants negligencealone is sufficient to causethe injury; the effect wouldresult only if both are presenttogether with normalbackground conditions. Negligence of the plaintiffcooperated with thenegligence of the defendantin order to bring about theinjury; determination ofproximate cause is only a

matter of degree ofparticipation.

D. Defendants Negligence

is the Only cause Defendants negligence wassufficient AND necessary tobring about the injury. However, if plaintiffsnegligence increased oraggravated the resultingdamage or injury liability ofthe defendant should also bemitigated under contributorynegligence rule or under thedoctrine of avoidableconsequences.

Doctrine of Last Clear Chance orDiscovered Peril The negligence of the plaintiff

does not preclude a recovery forthe negligence of the defendantwhere it appears that thedefendant, by exercisingreasonable care and prudence,might have avoided injuriousconsequences to the plaintiffnotwithstanding the plaintiffsnegligence.

Alternative Views:1. Prevailing view Doctrine is applicable in

this jurisdiction. Even if plaintiff wasguilty of antecedentnegligence, thedefendant is still liablebecause he had the lastclear chance of avoidingthe injury.

2. Minority View The historical function of thedoctrine was to mitigate theharshness of the common lawrule of contributorynegligence which preventedany recovery at all by theplaintiff who was alsonegligent even if hisnegligence was relativelyminor as compared with thewrongful act or omission of

the defendant.



8/7/2019 8torts

21/42



The doctrine has no role inthis jurisdiction wherecommon law concept ofcontributory negligence has

itself been rejected in Article2179 of the Civil Code.

3. Third View There can be no conflictbetween the doctrine of lastclear chance and doctrine ofcomparative negligence if theformer is viewed as a rule orphrase of proximate cause; However, the doctrine of lastclear chance is no longer

applicable if the forcecreated by the plaintiffsnegligence continues until thehappening of the injuriousevent.

Cases when the doctrine was heldinapplicable (PICCA)

1. If the plaintiff was notnegligent.

2. The party charged is required toact instantaneously, and if theinjury cannot be avoided by theapplication of all the means athand after the peril is or shouldhave been discovered.

3. If defendants negligence is aconcurrent cause and which wasstill in operation up to the timethe injury was inflicted.

4. Where the plaintiff, a passenger,filed an action against a carrierbased on contract.

5. If the actor, though negligent,was not aware of the danger or

risk brought about by the priorfraud or negligent act.

B. INTENTIONAL TORTS Include conductwhere the actordesires to cause theconsequences of hisact or believes thatthe consequencesare substantially

certain to resultfrom it.

They are found inChapter 2 of thePreliminary Title ofthe NCC entitledHuman Relations.Although this chaptercovers negligentacts, the tortsmentioned hereinare mostlyintentional in natureor torts involvingmalice or bad faith.

HUMAN RELATIONS1. Principle of Abuse of Rights

(ART.19) Elements:a. Legal right or duty;

b. The right or duty is exercised in badfaith; and

c. For the sole intent of prejudicing orinjuring another. E

XA

MPLE:Iftheprinc

ipalunreason


8/7/2019 8torts

22/42


ably

terminatedana

gencyagreemen

tforselfishreasons.(Valenz

u

elav

s.CA,190SCRA

1)

NOTE: This rule is a departure from thetraditional view that a person is notliable for damages resulting from theexercise of ones right.

2. Article 20 of the Civil Code Speaksof thegeneralsanctionfor allotherprovisions oflawwhichdo notespeciallyprovidefor theirownsanction

.NOTE: Article 20 does not distinguish;the act may be done willfully ornegligently.

3. Acts contra bonus mores (Article 21Civil Code) Elements:

a. Act which is legal;

b. The act is contrary to morals, goodcustoms, public order or publicpolicy; and

c. The act is done with intent to injure.



8/7/2019 8torts

23/42



NOTE: Damages are recoverable even ifno positive law was violated. Kinds:a. Breach of promise to marry

GENERAL RULE: Breach of promise tomarry by itself is not actionable.

EXCEPTION: In cases where there isanother act independent of the breachof promise to marry which gives rise toliability:

1. Cases where there was financialdamage.

2. Social humiliation caused to oneof the parties.

3. Where there was moralseduction.

NOTES:

Moral seduction, although not

punishable, connotes the idea ofdeceit, enticement, superior poweror abuse of confidence on the part ofthe seducer to which the woman hasyielded. (Gashem Shokat Baksh vs.CA)

Sexual intercourse is not by itself a

basis for recovery; damages couldonly be awarded if the sexualintercourse is not a product of

voluntariness or mutual desire.

b. Seduction without breach ofpromise to marry Seduction, by itself, is also an

act contrary to morals, goodcustoms and public policy. The defendant is liable if heemployed deceit,enticement, superior poweror abuse of confidence insuccessfully having sexual

intercourse with another evenif he satisfied his lust withoutpromising to marry theoffended party. It may not even matter thatthe plaintiff and thedefendant are of the samegender.

c. Sexual assault

Defendant is liable for allforms of sexual assaultincluding crimes definedunder the RPC as rape, acts

of lasciviousness andseduction.

d. Desertion by a spouse A spouse has a legalobligation to live with his/herspouse. If a spouse does not performhis/her duty to the other, hemay be liable for damages forsuch omission because thesame is contrary to law,

morals, good customs andpublic policy.

e. Trespass and Deprivation ofProperty 2 KINDS:1) Trespass to and/or deprivation of real property Liability for damages underthe RPC and Article 451 of the CivilCode requires intent or bad faith. Article 448 of the Civil Codein relation to Article 456 does notpermit action for damages where thebuilder, planter, or sower acted ingood faith. The landowner is limitedto the options given to him underarticle 448, that is to appropriatewhatever is built or planted or tocompel the builder or planter topurchase the portion encroachedupon. (Aquino, Torts and Damages) A builder in good faith whoacted negligently may be held liableunder Art. 2176 NCC.

2) Trespass to or deprivation ofpersonal property In the field of tort, trespassextends to all cases where a personis deprived of his personal propertyeven in the absence of criminalliability.NOTE: It may cover cases where thedefendant was deprived of personalproperty for the purpose of obtainingpossession of real property


8/7/2019 8torts

24/42


EXAMPLE: The defendantwho was landlord, was held liablebecause he deprived the plaintiffs,his tenants, of water in order to

force them to vacate the lot theywere cultivating. (Magbanua vs. IAC137 SCRA 352)3) Disconnection of electricityor gas service The right todisconnect and deprive thecustomer, who unreasonably fails topay his bills, of electricity should beexercised in accordance with the lawand rules. Example: If acompany disconnects the electricityservice without prior notice asrequired by the rules, the companycommits a tort under Article 21 NCC.

f. Abortion and Wrongful Death Damages may be recoveredby both spouses if:

1) the abortion was causedthrough the physiciansnegligence, or

2) was done intentionally

without their consent Husband of awoman whovoluntarilyprocured herabortion mayrecoverdamages fromthe physicianwho caused thesame onaccount ofdistress and

mental anguishattendant to theloss of theunborn childand thedisappointmentof his parentalexpectation.(Geluz vs. CA2SCRA802)

g. Illegal Dismissal

The right of the employer todismiss an employee shouldnot be confused with themanner in which the right is

exercised and the effectsflowing therefrom; If the dismissal was done anti-socially and oppressively, theemployer should be deemedto have violated Article 1701of the Civil Code (whichprohibits acts of oppressionby either capital or laboragainst the other) and Article21 NCC. An employer may be heldliable for damages if themanner of dismissing iscontrary to morals goodcustoms and public policy. EXAMPLE: False imputationof misdeed to justify dismissalor any similar manner ofdismissal which is doneabusively.

h. Malicious Prosecution An action for damagesbrought by one againstanother whom a criminalprosecution, civil suit, orother legal proceeding hasbeen instituted maliciouslyand without probable cause,after the termination of suchprosecution, suit orproceeding in favor of thedefendant therein. The gist of the action isputting legal process in forceregularly, for mere purpose of

vexation or injury. (Drilon vs.CA [1997])

Elements:1. The fact of the prosecution and

the further fact that thedefendant was himself theprosecutor; and that the actionwas finally terminated with anacquittal;

2. That in bringing the action, theprosecutor acted withoutprobable cause;



8/7/2019 8torts

25/42



3. The prosecutor was actuated orimpelled by legal malice.

NOTES:

Malice is theinexcusable intent toinjure, oppress, vex,annoy or humiliate. Presence of probablecause signifies absenceof malice. Absence of malicesignifies good faith onthe part of thedefendant; good faithmay even be based on

mistake of law. Acquittal presupposesthat a criminalinformation is filed incourt and finaljudgment rendereddismissing the case;nevertheless, prioracquittal may includedismissal by theprosecutor afterpreliminaryinvestigation. (Globe

Mackay and Radio Corp.vs. CA; Manila Gas Corpvs. CA)

i. Public Humiliation Damages may be awarded incases where the plaintiffsuffered humiliation throughthe positive acts of thedefendant directed againstthe plaintiff. Example: The defendant washeld liable for damages underArt. 21 for slapping theplaintiff in public. (Patriciovs. Hon. Oscar Leviste,[1989])

NOTES: UnderArticle21,damagesare

recoverable eventhoughno

positivelaw wasviolated. Anactioncan onlyprosperwhendamage,materialorotherwis

e, wassufferedby theplaintiff. AnactionbasedonArticles19-21will bedismissed if theplaintiffmerelyseeksrecognition. UnderArticles19 and21, thedefendant maylikewise

beguilty ofa torteven ifhe actedin goodfaith.(GrandUnionSupermarket


8/7/2019 8torts

26/42


vs.Espino)

TORTS AGAINST HUMAN DIGNITY

TYPES:1. Violation of the right of privacy Reasonableness of a persons

expectation of privacy dependson a two-part test:

a) Whether by his conduct, theindividual has exhibited anexpectation of privacy.b) Whether this expectation is onethat the society recognizes asreasonable.

NOTES:

GENERAL RULE: Right to privacy canbe invoked only by natural persons;Juridical persons cannot invoke suchright because the entire basis of right toprivacy is an injury to the feelings andsensibilities of a party, a corporationwould have no such ground.

EXCEPTION: Right against unreasonablesearches and seizure can be invoked by ajuridical entity.

GENERAL RULE: Right to privacy is

purely personal in nature, hence:1) It can be invoked only bythe person whose privacyis claimed to have beenviolated.

2) It can be subject towaiver of the personwhose privacy is soughtto be intruded into.

3) The right ceases uponthe death of the person.

EXCEPTION: A privilege may be givento the surviving relatives of a deceased

person to protect his memory but theprivilege exist for the benefit of theliving, to protect their feelings and toprevent the violation of their own rightsin the character and memory of thedeceased.

Standard to be

applied indetermining ifthere was aviolation of theright is that of aperson with

ordinarysensibilities. Itis relative to thecustoms of time

and place and isdetermined bythe norm of anordinary person.

Four Types of Invasion of Privacya. Intrusio

n upon plaintiffs seclusion or solitudeor into his private affairs It is not limited to cases wherethe defendant physically trespassed intoanothers property. It includes caseswhen the defendant invades ones

privacy by looking from outside(Example: peeping-tom).

GENERAL RULE: There is no invasion ofright to privacy when a journalist recordsphotographs or writes about somethingthat occurs in public places.

EXCEPTION: When the acts of thejournalist should be to such extent thatit constitutes harassment or overzealousshadowing.

The freedom of the press has neverbeen construed to accord newsmenimmunity from tort or crimes committedduring the course of the newsgathering. There is no intrusion when anemployer investigates an employee orwhen the school investigates its student. RA 4200 makes it illegal for anyperson not authorized by all the partiesto any private communication to secretlyrecord such communication by means ofa tape recorder (Ramirez vs CA, Sept.28, 1995) Use of a telephone extension forpurposes of overhearing a private

conversation without authorization doesnot violate RA 4200.NOTE: There are instances where theschool might be called upon to exerciseits power over its student for actscommitted outside the school premisesand beyond school hours in thefollowing:

1. In cases of violation of schoolpolicies or regulations occurring inconnection with school sponsoredactivity off-campus; or



8/7/2019 8torts

27/42



2. In cases where the misconduct ofthe student involves his status as astudent or affects the good nameand reputation of the school.

b. Publication of Embarrassing Private Facts Requisites:1. Publicity is given to any privateor purely personal information abouta person;

2. Without the latters consent; and3. Regardless of whether or notsuch publicity constitutes a criminaloffense, like libel or defamation, thecircumstance that the publicationwas made with intent of gain or forcommercial and business purposesinvariably serves to aggravate theviolation of the right.

PUBLIC FIGURE - Aperson, who by his accomplishments,fame or mode of living or by adopting aprofession or calling which gives thepublic a legitimate interest in his doings,his affairs and his character.

NOTE: Public figures, most especially

those holding responsible positions ingovernment enjoy a more limited rightto privacy compared to ordinaryindividuals. The interest sought to be

protected is the right to be free fromunwarranted publicity, from thewrongful publicizing of the privateaffairs and activities of an individualwhich are outside the realm oflegitimate public concern. The publication of factsderived from the records of official

proceedings which are not otherwisedeclared by law as confidential,cannot be considered a tortiousconduct.

c. Publicity which places a person in a falselight in the public eye The interest to be protected inthis tort is the interest of theindividual in not being made toappear before the public in an

objectionable false light or falseposition.EXAMPLE: Defendant was held liablefor damages when he published an

unauthorized biography of a famousbaseball player exaggerating hisfeats on the baseball field,portraying him as a war hero. (Spahnvs. Messner) If the publicity given to theplaintiff is defamatory, hence anaction for libel is also warranted; theaction for invasion of privacy willafford an alternative remedy. May be committed by the mediaby distorting a news report.

Tort of PuttingAnother in False

Light

Defamation

1. As to gravamen of claimThe gravamen ofclaim is not thereputational harmbut rather theembarrassment of aperson being madeinto some-thing he isnot

The gravamen ofclaim is the reputa-tional harm

2. As to publicationThe statement shouldbe actually made inpublic

Publication issatisfied if a letter issent to a third person

3. As to the defamatory character of thestatements

Defendant may stillbe held liable even ifthe statements tellssomething goodabout the plaintiff

What is publishedlowers the esteem inwhich the plaintiff isheld

d. Commer cial appropriation of likeness The unwarranted publication of apersons name or the unauthorizeduse of his photograph or likeness forcommercial purposes is an invasionof privacy. With respect to celebrities,however, the right of publicity isoften treated as a separate rightthat overlaps but is distinct from theright of privacy. They treat theirnames and likeness as property andthey want to control and profittherefrom.


8/7/2019 8torts

28/42


2. Interference with Family and otherrelations The gist of the tort is an

interference with one spousesmental attitude toward the otherand the conjugal kindness of maritalrelations resulting in some actualconduct which materially affects it. It extends to all cases ofwrongful interference in the familyaffairs of others whereby one spouseis induced to leave the other spouseor conduct himself or herself thatthe comfort of married life isdestroyed. If the interference is bythe parents of the spouse, malicemust be proven.

3. Intriguing to Cause Alienation

4. Vexation and Humiliation Discrimination against a personon account of his physical defect,which causes emotional distress, mayresult in liability on the part of theoffending party. Sexual Harassment falls underthis category.- a civil action separate and distinct fromthe criminal action may becommenced under RA 7877.

- 2 types of Sexual harassment:a) quid pro quo casesb) hostile environment cases

TORTS WITH INDEPENDENT CIVILACTIONS

1. Violation of civil and politicalrights (Article 32) Although the same normallyinvolves intentional acts, it can alsobe committed through negligence. Public officer who is adefendant cannot escape liabilityunder the doctrine of stateimmunity; the said doctrine appliesonly if acts involved are done byofficers in the performance of theirofficial duty within the ambit oftheir powers; officers do not actwithin the ambit of their powers ifthey violate the constitutional rightsof persons.

2. Defamation, Fraud, andPhysical injuries (Article 33)A. Defamation

Defamation is an invasion of theinterest in reputation and goodname, by communication to otherswhich tends to diminish the esteemin which the plaintiff is held, or toexcite adverse feelings or opinionagainst him. Includes the crime of libel andslander. RPC considers the statementdefamatory if it is an imputation ofcircumstance tending to cause thedishonor, discredit or contempt of

natural or juridical person or toblacken the memory of one who isdead. Requisites for one to be liablefor defamatory imputations:

a. It must be defamatoryb. It must be maliciousc. It must be given publicityd. The victim must beidentifiable

NOTES:

Test in determining the

defamatory character of theimputation: A charge is sufficient ifthe words are calculated to induce thehearers to suppose and understandthat the person/s against whom theywere uttered were guilty of a certainoffense, or are sufficient to impeachtheir honesty, virtue, or reputation, orto hold the person/s up to publicridicule.

Dissemination to a number of personsis not required, communication to a

single individual is sufficientpublication.

GENERAL RULE: Every defamatoryimputation is presumed to bemalicious, even if it be true, if nogood intention or justifiable motivefor making it is shown.

EXCEPTIONS:1. A private communication made

by any person to another in theperformance of any legal, moralor social duty; and



8/7/2019 8torts

29/42



2. A fair and true report, made ingood faith, without anycomments or remarks, of anyjudicial, legislative or other

official proceedings which arenot of confidential nature, or ofany statement, report, or speechdelivered in said proceedings orof any other act performed bypublic officers in the exercise oftheir functions.

It is not sufficient that theoffended party recognized himself asthe person attacked or defamed, itmust be shown that at least a third

person could identify him as theobject of the libelous publication. In order to escape liability, thedefendant may claim that thestatements made are privileged.

Two kinds of privilegedcommunication:

1) Absolutely privilege Those which are not actionableeven if the author acted in badfaith.2) Qualifiedly privilege

not actionable unless found tohave been made without goodintention or justifiable motive.

B. Fraud Elements of deceit1)The defendant must have made

false representation to theplaintiff

2)The representation must be oneof fact

3)The defendant must know thatthe representation is false or bereckless about whether it is false

4)The defendant must have actedon the false representation

5)The defendant must haveintended that the falserepresentation should be actedon

6)The plaintiff must have suffereddamage as a result of acting onthe false representation

Half-truths arelikewise included; it is actionable ifthe withholding of that which is notstated makes that which is stated

absolutely false. Misrepresentation upon a mere matter of opinion isnot an actionable deceit.

C. Physical injuries Battery an intentional inflictionof a harmful or offensive bodilycontact; bodily contact is offensive ifit offends a reasonable personssense of dignity. Assault intentional conduct byone person directed at anotherwhich places the latter inapprehension of immediate bodilyharm or offensive act. Includes bodily injuries causingdeath. Physical injuries which resultedbecause of negligence or imprudenceis not included in Article 33; they arealready covered by Article 2176 ofthe Civil Code.

3. Neglect of duty by police

officers (Article 34) Subsidiary liability of cities andmunicipalities, is imposed so thatthey will exercise great care inselecting conscientious and dulyqualified policemen and exercisesupervision over them in theperformance of their duties.

CIVIL LIABILITY ARISING FROM DELICT Every person criminally liable fora felony is also civilly liable. (Article100 RPC)

The reason is because a crimehas a dual character: as an offenseagainst the State and against theprivate person injured by it. Dual character of crimes appliesto cases governed by special laws.Example: violation of the BP 22results in criminal and civil liability. There is civil liability even if theoffense is a public offense, like inbigamy.


8/7/2019 8torts

30/42


Persons liable are the principal,accomplice and accessories. It includes restitution, reparationof damages and indemnification of

consequential damages. The rule on proximate cause inquasi-delict cases is applicable tocases involving civil liability arisingfrom delict. Art. 2202, NCC

Circumstances affecting Civil Liability1. Justifyingcircumstances Defendant is free from civilliability if justifying circumstancesare properlyestablishes.2. ExemptingCircumstances They do not erase the civilliability.3. Mitigating andAggravating Circumstances Damages to be adjudicatedmay either be decreased orincreased depending on the presenceof mitigating or aggravatingcircumstances.

Effect of Death

A. DEATH AFTER FINAL JUDGMENT:extinguishes criminal liability of theperson liable but will not extinguishthe civil liability.

B. DEATH BEFORE FINALJUDGMENT:

GENERAL RULE: The defendant isrelieved from both criminal and civilliability arising from criminalliability.

EXCEPTION: In case of libel andphysical injuries wherein the

plaintiff initially opted to claimdamages in the criminal proceedingcan file another case under Article33 of the Civil Code.

Effect of Pardon Pardon does not erase civilliability. While pardon removes the

existence of guilt so that in theeyes of the law the offender isdeemed innocent and treated asthough he never committed the

offence, it does not operate toremove all the effects of theprevious conviction.

DEFENDANTS IN TORT CASES

Concurrent Negligence or Acts1. Joint Tort-feasors All the persons who

command, instigate,promote, encourage,advice, countenance,cooperate in, aid, orabet the commission of atort, or who approve ofit after it is done, ifdone for their benefit;

they are each liable as aprincipal, to the sameextent and in the samemanner as if they haveperformed the wrongfulact themselves. The responsibility of twoor more persons liablefor quasi-delict issolidary (Article 2194Civil Code); they are notliable pro rata, they arejointly and severallyliable for the wholeamount.

2. Motor vehicle mishaps The owner is solidarily liablewith the driver, if the former,who was in the vehicle, couldhave, by the use of duediligence, prevented themisfortune. (Article 2184 CivilCode) Solidary liability is imposed onthe owner not because of hisimputed liability but because hisown omission is a concurringproximate cause of the injury.

Vicarious Liability or Doctrine ofImputed Negligence



8/7/2019 8torts

31/42



A person is not only liable for tortscommitted by himself, but alsofor torts committed by otherswith whom he has a certain

relation or for whom he isresponsible. (Article 2180 CivilCode)

Exercise of diligence of a good father ofa family to prevent damage is adefense.

Doctrine of RespondeatSuperior the liability is strictlyimputed, the employer is liablenot because of his act oromission but because of the actor omission of the employee;employer cannot escape liabilityby claiming that he exerciseddue diligence in the selection orsupervision of the employee.

GENERAL RULE: Vicarious liability inthe Philippines is not governed by thedoctrine of respondeat superior;employers or parents are made liable notonly because of the negligent orwrongful act of the person for whomthey are responsible but also because oftheir own negligence:

1) Liability is imposed onthe employer because he failedto exercise due diligence in theselection or supervision of theemployee2) Parents are made liablebecause they failed to exercisedue diligence

EXCEPTION: Doctrine ofrespondeat superioris applicable in:

1) liability of employersunder Article 103 of the RPC2) liability of a partnership

for the tort committed by apartner

Persons Vicariously Liable: (Article2180 of the Civil Code)1. The Father, or in case of death orincapacity, mother For damage caused by:

a) minor childrenb) living in their company This has already

been modified

by Art. 221 ofthe Family Codeto the extentthat the

alternativequalification ofthe liability ofthe father andthe mother hasbeen removed.

NOTES:

The basis of liability for the

acts or omissions of their minorchildren is the parental authoritythat they exercise over them,except for children 18 to 21.

The same foreseability test

of negligence should apply toparents when they are sought tobe held liable under Art. 2180,NCC

The liability is not limited to

parents, the same is alsoimposed on those exercisingsubstitute and special parentalauthority, i.e., guardian.

The liability is present only

both under Art 2180 of the NCC

and Art 221 of the Family Code ifthe child is living in his parentscompany.

Parental authority is not the

sole basis of liability. A teacherin charge is still liable for theacts of their students even if theminor student reaches the age ofmajority.

The parents or guardians can

still be held liable even if theminor is already emancipated

provided that he is below 21years of age.

Parents and other persons

exercising parental authority canescape liability by proving thatthey observed all the diligenceof a good father of a family toprevent damages. (Art. 2180)

The burden of proof rests on

the parents and personsexercising parental authority.


8/7/2019 8torts

32/42


2. Guardians For damage caused bya. minors or incapacitated

persons

b. under their authorityc. living in their company

3. Owners and managers ofestablishments For damage caused by:

a) their employeesb) in the service of the branches in

which they are employed, orc) on the occasion of their

functions

4. Employers For damagescause by:

a) employees and householdhelpers

b) acting within the scope of theirassigned tasks

c) even if the employer is notengaged in any business orindustry

NOTES:

Liability of the employer can be

established by proving the existenceof an employer-employeerelationship with the actor and thelatter caused the injury whileperforming his assigned task orfunctions.

The vicarious liability attaches onlywhen the tortuous conduct of theemployees relates to or is in thecourse of his employment.

While the employer incurs no

liability when an employees

conduct, act or omission is beyondthe range of employment, a minordeviation from the assigned task ofan employee, however does notaffect the liability of an employer.(Valenzuela vs. CA, 253 SCRA 303)

It is a defense that the employerexercised proper diligence in theselection and supervision ofnegligent employee.

5. StateFor damage caused by:

a) a special agent

b) not when the damage has beencaused by the official to whom thetask done properly pertains

Public officerswho are guiltyof tortuousconduct arepersonally liablefor theiractions.

6. Schools, Teachers andAdministrators For damage caused by:a) pupils and students or

apprenticesb) in their custody

statutory basis:

if student is minor Art. 219, FC

if student is no longer aminor Art. 2180, Civil Code

NOTES:

Applies also to teachers of

academic institutions.

Liability attaches to theteacher-in-charge.

The sch

8torts

Documents

Transcript of 8torts