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Compilation of Q&As in Pineda’s Torts and Damages Book Brought to you by the Acad Committee, UP Women in Law Are moral damages recoverable in breach of contract of carriage? Generally, moral damages are not available in breach of contract of carriage. This is not one of the items

enumerated in Article 2219 of the New Civil Code. As an exception, such damages are recoverable: (1) in cases in which the mishap results in the death of the passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code; and (2) in the cases in which the carrier is guilty of fraud or bad faith, as provided in Art. 2220 (see Calalas v. CA; Cervantes v. CA)

Can there be a tort of quasi-delict in breach of contract? Generally, no. however, the existence of contract does not bar the commission of a tort be one against the

other and the consequent recovery of damages. Where the act that breaks the contract may also be a tort, the contractual relation of the parties does not bar the recovery of damages (Singson v. BPI)

Can the hospital be held liable for the fault or negligence of the physician in the treatment or operation of patients? Professional Servcices Inc v. Agana – in Ramos v. CA, for purposes of apportioning responsibility in medical

negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. Moreover, the hospital’s liability is also anchored upon the agency principle of apparent authority or agency by estoppels and the doctrine of corporate negligence which have gained acceptance in the determination of a hospital’s liability for negligent acts of health professionals.

Can there be a tort in malpractice in law? Yes. While lawyers are not required to exercise the extra-ordinarily diligence of a common carrier, they

must exercise diligence not lesser than the diligence of a good father of a family in the handling of cases which they accepted from clients.

Adrimisim v. Javier Respondent lawyer, in failing to immediately secure a bail bond, clearly neglected to exercise ordinary diligence or that reasonable degree of care and skill required by the circumstances

Negligence, to be “excusable,” must be one which ordinary diligence and prudence could not have guarded against

RPC, Art. 209: A lawyer commits the crime called “betrayal of trust” if he would maliciously breach his professional duty, or is guilty of inexcusable negligence or ignorance to the prejudice of his client

Are children below 9 years capable of contributory negligence? No. a children under 9 years of age is conclusively presumed incapable of contributory negligence as a

matter of law (Jarco Marketing Corp v. CA) Can the principle of contributory negligence apply in criminal cases? The principle of contributory negligence cannot be used as a defense in criminal cases through reckless

imprudence because one cannot allege the negligence of another to evade the effects of his own negligence (PP v. Quinones). It may, however, mitigate the civil liability of the defendant but cannot affect his criminal liability (PP v. Sobremonte)

May the subsidiary liability of parents arising from the Criminal Acts of their minor children who acted with discernment be determined under Art2180 of the Civil code? Yes. It held that A2180 applies to an action for damages filed by the parents of a minor child who was

maliciously killed by another boy below eighteen. This rule avoids the absurdity that while A2180 applies to quasi-delicts it would not apply to damages caused with criminal intent (Salen v. Balce)

Are the de facto guardians covered by paragraph 3, Art.2180? De facto guardians are relatives and neighbors who take unto themselves the duty to take care and support

orphaned children without passing through judicial proceedings. It is but just that if the children commit tortuous acts while living with them and are below 21 years of age, the law should be applied by analogy. This is to compel them to exercise control and supervision over the orphans over whom they voluntarily assumed the duties of parenthood.

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Are students of age within the coverage of paragraph 7, Art.2180? Yes, if just like pupils, they are equally in the custody of the school and subject to its discipline. Unlike the parent., who will be liable only if the child is still a minor, the teacher is held answerable by the

law for the act of the student under him regardless of the age of the student. Art. 2180 treats the parent more favorably than the teacher (Amadora v. CA)

Is Art.2184 applicable to “calesa” mishaps? The article speaks of motor vehicle mishaps. However, the principle in the article has been applied to a

“calesa” mishap where it was held that the owner of the calesa, who was not in the calesa at the time of the incident is not liable for the acts of his cochero (Johnson v. David)

May the lessee or usufructuary be covered under Art.2190-2192? In lease and usufruct, the possession of the subject propert is transferred to the lessee or usufructuary. If

during the existence of the lease or usufruct, the events mentioned in the article occurred by reason of the sole negligence of the lessee or usufructuary, then he is liable. If the lessor or owners of the property is also negligent, both will be liable for the damage or injury caused to another

Can labor arbiters or NLRC entertain and decide claims for damages? Yes. Under Art. 217 of RA 6715, the jurisdiction of labor arbiters and the NLRC is comprehensive enough to

include the claims for all forms of damages arising from the ER-EE relations (Bañez v. Valdevilla) May an award for actual damages be executed pending appeal? Yes. However, award for moral or exemplary damages cannot be executed pending appeal because the

same cannot be regarded as fixed or definite until there is a final judgment. The grant depends upon the result of the main case (RCPI v. Lantin)

Can both Actual (Damnum Emergens) and compensatory damages (Lucrum Cessans) be granted at the same time to the plaintiff? Yes. RCPI v. CA: In respect to compensatory and actual damages, it is not entirely erroneous to grant both

items of damages. They were so awarded in MD Transit v. CA. True, compensatory and actual damages are dealt with in the Civil Code under the same Chapter 2 thereof and that the two other terms are used therein as equivalent to one another. However, as provided for in Art. 2200 of the Civil Code, which is part of the aforementioned Chapter 2, indemnification for damages shall comprehend not only the value of the loss suffered, or actual damages (damnum emergens), but also that of the profits which the obligee failed to obtain, or compensatory damages (lucrum cessans). In other words, there are two components to actual or compensatory damages.

Will the amount of attorney’s fees affect the jurisdiction of the court? No. If the claim is pursued in the very action where the services were rendered, the court may pass upon

the said claim, even if its amount were less than the minimum prescribed by law for the jurisdiction of the said court, upon the theory that the right to recover attorney’s fees is but an incident of the case in which the services of counsel have been rendered. It also rests on the assumption that the court trying the case is to certain degree already familiar with the nature and extent of the lawyer’s services. The rule against multiplicity of suits will in effect be subserved (Pan Pacific Co v. Advt. Corp.)

Who can initiate an action for defamation? Only the offended party (Sec. 5, last. Par, Rule 110)

May moral damages be automatically assessed against unsuccessful plaintiffs? If there were no bad faith in the filing of the plaintiff’s complaint, its dismissal does not necessarily make

him as losing party automatically liable for moral damages to the defendant. The adverse result on an action does not per se make an act wrongful and subject the actor to the payment

of moral damages (Barreto v. Arevalo) Ultimately, however, it is discretionary upon the court whether or not to grant moral damages. Art. 2219

uses the word “may” in the opening sentence

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Who can file the action for damages against the offenders? The following, in the order named, may file an action for damages: (a) spouse; (b) descendants; (c)

ascendants, and (d) brothers and sisters May a corporation which is an artificial person suffer moral damages?

It depends on the specific basis relied upon. In ABS-CBN Broadcasting Corpoation v. CA, the Supreme Court held, “The award of moral damages cannot be granted in favor of a corporation because, being an artificial person and having existence only in legal contemplation, it has no feelings, no emotions, no senses, It cannot, therefore, experience physical suffering and mental anguish, which call be experienced only by one having a nervous system. The statement in People v. Manero and Mambulao Lumber Co. v. PNB that a corporation may recover moral damages if it "has a good reputation that is debased, resulting in social humiliation" is an obiter dictum. On this score alone the award for damages must be set aside, since RBS is a corporation.”

It is therefore clear that if a corporation bases its claims for moral damages on physical sufferings or mental anguish, fright, serious anxiety, wounded feelings, mental shock, social humiliation and similar internal injury, the corporation cannot be awarded with moral damages for the obvious reason that an artificial person cannot suffer such internal feelings for lack of a nervous system

However, if the corporation is basing its claim for moral damages on sufferance of besmirched reputation, then it is entitled to moral damages if warranted by the evidence. It is, however, essential that it enjoys a good reputation

When can an employer be liable for exemplary damages for the acts of his employee? As a rule, no. A principal or master can be held liable for exemplary or punitive damages based upon the

wrongful act or has previously authorized or subsequently ratified it, with full knowledge of the facts. Exemplary damages punish the intent – and this cannot be presumed on the part of the employer merely because of the wanton, oppressive or malicious intent on the part of the agent. (Munsayac v. de Lara)

Can the agency of the State be subjected to temperate and exemplary damages? The court finds it proper to award temperate and exemplary damages in light of NIA’s misuse of its power

of eminent domain – any arm of the state that exercises the delegated power of eminent domain must wield that power with circumspection and utmost regard for procedural requirements (Republic v. CA, 454 SCRA 516)

Is it necessary that the aggravating circumstance/s be alleged in the information to justify a grant of exemplary damages? Decisions are conflicting. But the better rule (at least according to Pineda) is that “notwithstanding the

failure to allege the aggravating circumstances, the proven presence thereof is still material in the determination of exemplary damages to be awarded to the complainant (PP v. Legaspi)

Is the concept of tort or quasi-delict applicable to both persons and property? As a general rule, the concept of tort or quasi-delict applies to persons. Thus the chapter on quasi-delict

generally speaks of physical injuries and death caused to persons. This tort is referred to as personal tort. Personal tort is one involving or consisting in an injury to the person or to the reputation or feelings, as distinguished from an injury or damage to real or personal property, called a “property tort”

There are however, articles which speaks of property particularly the ff: [emphasis supplied] o Art. 22. Every person who through an act of performance by another, or any other means, acquires or

comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him.

o Art. 23. Even when an act or event causing damage to another's property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited.

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o Art. 24. In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection.

o Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against he latter, without prejudice to any disciplinary administrative action that may be taken.

o Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.

o Art. 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which: (1) Injures or endangers the health or safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any public highway or street, or any body of water;

or (5) Hinders or impairs the use of property.

o Art. 696. Every successive owner or possessor of property who fails or refuses to abate a nuisance in that property started by a former owner or possessor is liable therefor in the same manner as the one who created it.

o Art. 2191. Proprietors shall also be responsible for damages caused: (1) By the explosion of machinery which has not been taken care of with due diligence, and the

inflammation of explosive substances which have not been kept in a safe and adequate place; (2) By excessive smoke, which may be harmful to persons or property; (3) By the falling of trees situated at or near highways or lanes, if not caused by force majeure; (4) By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without

precautions suitable to the place.

NCC, Art. 30 – when should the reservation be made? The reservation of the right to institute separately the civil action shall be made before the prosecution

starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation (Rule 111, Sec. 1, par. 2

Does Art. 33 apply only to injuries intentionally committed? Old rule: article 33 does not apply to injuries which arose from criminal negligence. It is applicable only to

injuries intentionally committed (Marcia v. CA) New Rule: In the subsequent case of Madeja v. Caro involving the death of a patient after an operation for

appendectomy, SC held: “Corpus v. Paje, which states that reckless imprudence or criminal negligence is not included in article 33 of NCC is not authoritative. Of eleven justices only nine took part in the decision and 4 of them merely concurred in the result.”

Can a lawful business be a nuisance? It may or may not be a nuisance depending upon the peculiar circumstances of each case. If the coundact of

the business causes grave inconvenience and discomfort to others, it is a nuisance (de Ayala v. Barretto). Otherwise, it is not.

When are dams considered nuisances? Dams constructed across canals by private persons within private lands and exclusively devoted for private

use are not public nuisances. They must not be demolished (Santos v. Moreno) But dams and dikes which encroach into any public navigable river, stream, coastal waters, and any other

navigable public waters or waterways, including those constructed in areas declared as communal fishing grounds shall be removed as public nuisances unless constructed by the Secretary of Public Works for

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public interests or safety, or when absolutely necessaty for the protection of private property (R.A. 2056; see Macatangay v. Sec. of Public Works; Lovina v. Moreno)

When is there an automatic presumption of fault or negligence in contract of carriage? When there is death or injuries caused to passengers, the common carrier is automatically presumed to

have been at fault or to have acted negligently (Art.1756; Sy v. Malate Taxicab) Is Art. 1174 applicable to common carriers? Yes, insofar as the last portion of the article is concerned reading, “no person shall be responsible for those

events which could not be foreseen, or which though foreseen were inevitable.” Thus, a carrier is not liable for injuries suffered by a passenger caused by another vehicle without contributory negligence on the part of the former (see: Ampang v. Guinoo Transportation; Cayanan v. La Mallorca)