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TORTS AND DAMAGES (SUMMARIZED) TIMOTEO B. AQUINO, 2d Edition, 2005 Chapter 1 General Considerations 1. Tort Defined
Fr. French word derived from Latin Torquere meaning to twist. An unlawful violation of private right, not created by contract, and which gives rise to an action for damages. It is an act or omission producing an injury to another, without any previous existing lawful relation of which the said act or omission may be said to be a natural outgrowth or incident. Private or civil wrong or injury, other than breach of contract, for which the court will provide a remedy in the form of an action for damages. There must always be violation of some duty that must arise by operation of law and not by mere agreement of the parties. As a general legal classification, it encompasses a number of different civil causes of action providing a private remedy, almost always in the form of money damages, for an injury to a person caused by tortious conduct of another. Each tort is separately named or defined, but there is no universal formula for tort liability. Breach of legal duty

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Roman law served as the main inspiration of the NCC. o Institutes in Roman Law added the category of obligations that arise quasi ex delicto Liability of a judge who misconducts a case or gives a wrong decision Liability of an occupier of a building for double the damage caused by anything thrown or forced out of the building, no matter by whom, on to a public place (Now Art. 2193 of NCC) Liability of the occupier if he keeps any object suspended from the building which would do damage if it fell Liability of the shop keeper, innkeeper, or keeper of a stable for any theft or damage caused by slaves or employees of in case of innkeepers, of permanent residents. ( Now Art. 2000 of the NCC)

2. Philippine Tort Law A. Sources The New Civil Code - primary statute that governs torts in the Philippines - Article 1157 of the NCC includes quasi-delict as a source of obligation extra contractual obligation governed by (Chapter XVII, Chapter 2 of the NCC consisting of Articles 2176 2194. - Various torts in other countries are relied upon in our jurisdiction, particularly Spain and United States.

B. Scope and Applicable laws The general plan sought was NCC to cover only torts caused by negligence while intentional acts should be governed by the RPC. o Few deviations though : Section 22 and 100 of the Corporation Code, Art. 68 of the Child Youth Welfare Code Section 17 (a) (6) of the Ship Mortgage Decree NCC reveal an evident intent to adopt the common law concept of tort and to incorporate the different,

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intentional and unintentional common law torts in the NCC o Note that civil remedies are available and embodied in the different provisions of the NCC. (i.e., independent civil actions ( Art. 32, 33,34,35 & 36) In keeping the with the spirit of the individual initiative and the intense awareness of ones individual rights a. Catch- all Provisions Art. 19, 20, and 21 of the NCC states: Art. 19: Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20: Every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same. Art. 21: Any person who willfully causes loss or injury to another in a manner that is contrary to moral, good customs, or public policy shall compensate the latter for the damage. o o Introduces malice in the commission of torts. Art. 29 provides for general sanction for all other provisions of law which do not especially provide for own sanction and is broad enough to cover all legal wrongs which do not constitute violations of contract. Philippine Laws covers the following torts: 1. Defamation 2. Fraud 3. Physical Injuries

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4. Violation of Constitutional Rights 5. Negligence 6. Interference with Contractual Relations 7. Violation of Privacy 8. Malicious Prosecution 9. Product liability 10. Strict liability for possession of animals 11. Abuse of rights 12. Acts which violate good morals and customs. 13. Civil liability arising from criminal liability o Articles 19, 20 & 21 are catch-all provisions that serve as basis of any imaginable tort action. It provides for general concepts that make persons liable for every conceivable wrongful act. There is general duty owed to every person not to cause harm either willfully or negligently Intended to expand to concept of torts in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically provide in the statutes. It affords relief against novel forms of misconduct when necessary and appropriate.

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b. Expanded Scope of Quasi- Delict Prior to enactment of the NCC, SC had already adopted abroad concept of torts using Art. 1902 of the Old Civil Code (Now. Art 2176 of the NCC) o SC we take the rule that a person is liable for damage done to another by any culpable act; and by culpable act we mean act which is blameworthy when judged by accepted legal standards. ; Torts therefore should include any rational conception of liability for tortious act likely to be developed in any society. The concept of culpa aquiliana includes acts which are criminal in character or in violation of the penal law, whether voluntary or negligent. Thus, acquittal from an accusation of a criminal negligence, whether on reasonable doubt or not, shall not be a bat to a subsequent civil action, not for civil liability arising from criminal negligence, but for damages due to a quasi-delict or culpa aquiliana.

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willful intent, but by mere negligence or inattention, has caused damage to another. Quasi delict is founded on fault or negligence, which excludes all notions of intent, deliberateness, bad faith or malice. 3. Purposes of Tort Law A. Major purposes 1. To provide a peaceful means for adjusting the rights of parties who might otherwise take the law into their own hands 2. Deter wrongful conduct 3. Encourage socially responsible behavior 4. Restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury. Seeks to reduce the risks and burden of living in the society and to allocate them among the members of society. Protecting the different interests in the society

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. (1902a)

B. Balancing of Conflicting Interest Doing all the things that constitute modern living there must of necessity be losses, or injuries of many kind sustained as a result of the activities of others. The purpose of the law of torts is to adjust these losses and to afford compensation for injuries sustained by one person as the result of the conduct of another. The study of the law of torts is therefore, a study of the extent to which the law will shift the losses sustained in modern society from the person affected to the shoulder of him who caused the loss or more realistically in many

c. View that Art. 2176 is limited to negligence Minority opinion: quasi-delict refers merely to negligent acts. Liability arising from extra-contractual culpa is always based upon a voluntary act or omission which, without

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fields, to the insurance companies who are increasingly covering the many risks involved in the conduct of business and individual activities. Although the tor law is mainly concerned with providing compensation for personal injury and property damage caused by negligence, it also protects other interests such as reputation, personal freedom, enjoyment of property and commercial interests.

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4. Fundamental Principles A. Equity and Justice equity and justice above strict legalism the spirit the giveth life rather than the letter that killeth Articles 21 & 26 of the NCC. Acting with justice involves the duty to indemnify for damage caused under Articles 20, 21, 28, 27. ; To indemnify by reason of unjust enrichment under Arts 22, 23. NCC human relations chapter provides for human conduct which should run as golden threads through society, to the end that law may approach its supreme ideal, which is the sway and dominance of justice. In the adjustment of the conflicting interests of individuals within the society, some norm or standard must be available whereby the compromise or adjustment may take place. Interests are to be adjusted in a manner that is just. Law is conceived as a justice- seeking process and particular laws are therefore evaluated on the basis of their contribution to the ideal of justice. Plato: The precepts of law are these, to live honestly, not to injure another, and to give each one his due; Justice is a steady and unceasing disposition to render every man his due. In society : Two-levels of Justice : 1. Social level - justice as distributive and retributive Distributive allocation of social goods and bads: wealth-poverty income-employment, power-powerless, and so on. ; Principal concern of our democratic institutions and are addresses primarily by the legislatures.

Interests Protected Person Freedom from contact (A2176) Freedom from distress

Torts and/or Provisions Involved

Physical Injuries (A32), Quasi-Delict Moral Damages (A2217-2220)

Dignity Reputation Defamation (A33) Privacy Violation of Privacy (A26) Freedom from wrongful actions Malicious Prosecution (A20&21) Property Real Property (A2176) Economic/ Pecuniary Contracts (A1314) Freedom from Deception

Nuisance (A694-770), Quasi-Delict

Interference with Contractual rights Fraud (A33)

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Retributive sanctions or penalties that are applied to those who engage in certain kinds of antisocial behavior: murder, rape, kidnapping 2. Individual level Compensatory (corrective) a person who wrongfully inflicts harm on another person or that persons property must repay or repair the damage, that is, the one causing harm must try to place the injured party in as good a position as that person would have enjoyed had the wrong not been inflicted. Commutative entails fairness of a private bargain or exchange; presupposes full information, truthfulness, mental capacity, absence of coercion, and subjective satisfaction. Equity justice according to natural law and right; justice outside legality; often invoked in justifying the rule regarding mitigation of liability if the plaintiff was guilty of contributory negligence. B. Democracy Democracy affects the very foundations of human life and happiness; it must be inculcated into the hearts and minds of men and women. C. Human Personality Exalted The sacredness of human personality is a concomitant of every plan for human amelioration. The touchstone of every system of laws, of culture and civilization of every country, is how far it dignifies man. If human personality is not properly exalted then the laws are indeed defective. 5. Justifications of Tort Liability

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Extra-contractual obligation has its source in the breach or omission of those mutual duties which civilized society imposes upon its members, or which arise from these relations, other than contractual, of certain members of society to others, generally embraced in the concept of the status. In cases of non-contractual obligation it is the wrongful or negligent act or omission itself which creates the vinculum juris, A. Moral Perspective Tort liability may be justified because the conduct is considered a moral wrong. The business of the law of torts is to fix the dividing lines between those cases in which a man is liable for harm which he has done, and those in which he is not. We are to ask what are the elements, on the defendants side, which must all be present before liability is possible, and the presence of which will commonly make him liable if damage follows. The risk of a mans conduct is thrown upon him as a result of some moral shortcoming. Ubi jus ibi remedium there is no wrong without a remedy. Focus is the wrong committed and the moral shortcoming of the actor.

B. Social and Economic Perspective Liability may be provided for certain tortious conduct because of the good that it will do to the society as a

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whole and its function of encouraging socially responsible behavior. General notions of policy incorporating tacitly assumed social objectives have shaped the law and have furnished the final standard by which the adjustments of the conflicting interests have been made Public policy requires that some interests not be invaded too far in the advancement of other interests. Economic focuses on the allocation of the risks of loss due to the destruction of property or injury to persons created by those activities. ; a system of rules designed to maximize wealth by allocating risks so as to minimize the costs associated with engaging in daily activities. Allocating resources to prevent accidents. Strict liability for defective products is the best way to allocate risks to minimize costs.

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B. Defendants: Persons who may be held liable

Defendants in tort cases can either be natural or artificial being. Corporations are civilly liable in the same manner as natural persons. Concept of vicarious liability (A21800 Liability : o Close corporation : all stockholders who are personally involved in the operation of the corporation may be personally liable for corporate torts o Corporation by estoppel: all persons who assume to acts a corporation shall be liable as general partners for all debts, liabilities and damages incurred or arising as a result thereof.
o Partnerships; solidarily liability (mutual agency rule) when pone partner commit tortious act while acting in the pursuit of the partnership business.

6. Persons who can sue and be sued for Tort A. Plaintiffs: Persons who are entitled to damages Any person who had been injured by reason of a tortious conduct can sue the tortfeasor. Can be a natural person or a juridical entity (corporation)
NOTES: An unborn child is NOT entitled to damages. But the bereaved parents may be entitled to damages, on damages inflicted directly upon them. ( Geluz vs. CA, 2 SCRA 802) The primary purpose of a tort action is to provide compensation to a person who was injured by the tortious conduct of the defendant.

7. Remedies Available: Preventive or compensatory 1. Preventive: a prayer for injunction and temporary restraining order 2. Compensatory: an action for damages against the defendant. 8. Alternative Compensation Schemes A. Insurance: e.g. Compulsory motor vehicle insurance. B. Workers Compensation: to have simplified, expeditions, inexpensive and nonlitigious procedures so that victims of industrial accidents could more readily; if not automatically receive compensation for work-related injuries.

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Chapter 2 - Negligence 1. Kinds of Negligence Actionable negligence may either be: 3. Culpa contractual (Contract) 4. Culpa aquiliana (quasi-delict) 5. Criminal negligence (delict) A. Statutory Basis and Requisites a. Quasi-Delict ( A2176, NCC) 1. Essential requisites: 1. An act or omission constituting fault or negligence 2. Damages caused by the said act or omission 3. The causal relation between the damage and the act or omission 4. In addition: the absence of contractual relation between the plaintiff and the defendant. b. Delict (A365, RPC) Imprudence and negligence - any person who by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its maximum period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed. Reckless imprudence consists in voluntary, but without ,malice, doing or failing to do an act from which

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material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding person, time and place. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest. 2. Elements of the crime: 1. That the offender does or fails to do an act 2. That the doing or the failure to do that act is voluntary 3. That it be without malice 4. That material damage results from the reckless imprudence 5. That there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. c. Contract ( A1170- 1174, NCC) Those, who in the performance of the obligation are guilty of fraud, negligence, or delay, are liable for damages.

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B. Distinctions a. Culpa Aquiliana distinguished from Culpa Contractual 1. Foundation of liability : Culpa contractualcontract; Culpa aquiliana separate and distinct from contract b. Culpa Aquiliana distinguished from Crimes 1. Crimes affect public interest while quasi-delict are only of private concern 2. RPC punishes or corrects criminal act while NCC only repairs the damage 3. Delicts are only punished if the penal law clearly covered them while quasi-delicts include all acts in which any kind of fault or negligence intervenes. 4. Liability of the employer of the actor-employee is subsidiary in crimes while liability is direct and primary in quasi-delict. C. Concurrence of Causes of Action A single act or omission may give rise to two or more causes of action an act or omission may give rise to an action based on delict, quasi-delict, and even contract. Whenever a contractual obligation van be breached by tort, it is also possible that two persons are liable for such breach even if there is only one act or omission that causes the injury. There may also be concurrence of causes of action even if only one person is sought to be held liable. The limitation imposed by law is the proscription against double recovery provided under A2177 of the NCC. Plaintiff

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cannot recover twice for the same act or omission of the defendant. 2. Concept of Negligence 1. Definition and Test of Negligence Negligence is the omission of the degree of diligence which is required by the nature of the obligation and corresponding to the circumstances of persons, time and place. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do , or the doing of the something which a prudent and reasonable man would not do Negligence is a conduct that creates an undue risk of harm to others. Negligence is the failure to be observed for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other persons suffer injury. Negligence is want of care required by the circumstances. It is relative or comparative, not absolute term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. Where the danger is great, a high degree of care is necessary, and the failure to observe it is a want of ordinary care under the circumstances. Test to determine the existence of negligence: did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation?

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The conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case. Another Test: could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued. Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing conducting or guarding against its consequences.

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Such type of risk is unreasonable risk. If it results in injury to the plaintiff, then he can recover from the defendant. 4. Foreseeability The determination of negligence is a question of foresight on the part of the actor. Test of foreseeability to determine what a reasonable man would have done. could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? The court should look more on the possibility of hazard of some form than the particular chance that happened. Cases: Ong vs. Metropolitan Water District Civil Aeronautics Adm. vs. CA 5. Probability There is negligence if a prudent man in the position of the tortfeasor would have foreseen that the effect harmful to another was sufficiently probable to warrant his conduct or guarding against its consequence If there is great probability that damage will result, a person is negligent if he did not exercise due diligence in the face of such great probability. The degree of care required is graduated according to the danger a person or property attendant upon the activity which the actor pursues or the instrumentality he uses. Foreseeability is not the same as probability. Even if there is lesser degree of probability that damage will result, the damage may still be considered foreseeable. The test as respects foreseeability is not the balance of probabilities, but the existence, in the situation in hand,

2. Negligence is Conduct What the defendant did or did not do? Whether the person who is sought to be held liable omitted to do something which a reasonable man would do or did something which a reasonable man would not do. Negligence is determined by the behavior of the actor in the situation before him, not good faith, not state of mind of the actor. Motive is not material in negligence cases Only juridical fault is subject to liability and not moral fault. The conduct that should be examined in negligence cases is prior conduct that is conduct prior to the injury that resulted or, in proper cases, the aggravation thereof. Diligence before the fact. This diligence may include the duty to investigate. 3. Unreasonable or Undue Risks In Negligence, a risk means danger that is apparent or should be apparent, to one in the position of the actor.

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of some real likelihood of some damage and the likelihood is of such appreciable weight and moment to induce, or which reasonably should induce, action to avoid it on the part of a person of reasonably prudent mind. 3. Calculation of Risk A. Risk Benefit Analysis By balancing the risk, in the light of the social value of the interest threatened, and the probability and extend of harm against the value of the interest which the actor is seeking to protect, and the expedience of the course pursued. The following should be considered: 1. Gravity of the harm to be avoided 2. Utility of conduct of the social value it seeks to advance 3. Alternative courses of action. Dangers and advantages to the person or property of the actor himself and to others. Reasonableness may depend upon 5 factors: 1. The magnitude of risk 2. The value of the importance of that which is exposed to the risk, the principal object. 3. A person who takes a risk is injuring the principal object usually does so because he has some reason of his own for such conduct, the collateral object 4. The probability that the collateral object will be attained by the conduct which involves risk to the principal ( the utility of the risk) 5. The probability that the collateral object will be attained without taking the risk. Algebraic formula: P = probability L = injury B = burden Liability = B PL

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B. Rule in the Philippines Courts in this jurisdiction do not use any formula in determining if the defendant committed a negligent act or omission; there is no indication in cases decided by the SC that it seeks to give a precise economic meaning to the term. What appears to be the norm is to give negligence a common sense, intuitive interpretation. Balancing of risk is merely a convenient one to indicate factors which may be considered and should connote any mathematical correspondence. Interests are to be balanced only in the sense that the purposes of the actor, the nature of his act and the harm that may result from action or inaction are elements to be considered. Rule in the Philippines: What constitute ordinary care vary with the circumstances of the cases; that negligence is want of care required by the circumstances. Every case must be dependent on its facts. Negligence is a relative or comparative concept. Its application depends upon the situation the parties are in, and the degree of care and vigilance which the prevailing circumstances reasonably require. Art. 1173 of NCC provides that the degree of diligence depends upon the nature of the obligation and corresponds to the circumstances of person, time and place.

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Art. 365 of RPC, provides that the determination of reckless imprudence should take into consideration the employment or occupation of the actor, his degree of intelligence, physical condition and other circumstances regarding persons, time, and place.

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When human life is at stake, due care under the circumstances requires everything that gives reasonable promise of preserving life to be done regardless of the difficulties. v. Alternative Course of Action the gravity of the injury which will result if the alternative course of action is taken by the actor is also considered. vi. If the alternative presented to the actor is too costly, the harm that may result may still be considered unforeseeable to a reasonable man. vii. Social Value or Utility of Activity the absence of valuable alternative should also be examined in the light of the social value of the activity involved. The diligence which the law requires an individual to observe and exercise varies according to the nature of the situation which he happens to be in, and the importance of the act which he has to perform. This is not to say, however, that the duty to observe proper diligence is absent if the activity involved has a high social value. Any act which subjects an innocent person to an unnecessary risk is a negligent act if the risk outweighs the advantage accruing to the actor and even to the innocent person himself. viii. Person Exposed to the Risk the character of the person exposed to the risk is also a circumstance which should be considered in determining negligence.

a. Circumstances to Consider i. Time time of the day may affect the diligence required of the actor. ii. Place the place of the incident is also material iii. Emergency who can be wise, temperate and furious, loyal and neutral in a moment? No man. 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. NOTE: in cases in which reflective thought is absent, its the over-all nature of the circumstances that must be considered and not just the suddenness of events.

iv. Gravity of Harm to be Avoided even if the odds that an injury will result is not high, harm may still be considered foreseeable if the gravity of harm to be avoided is great.

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A. Attributes of a Good Father of a Family a. Knowledge and Experience of the Actor - the prudent man is expected to act according to the circumstances that appear to him at the time of the incident and he is not judged based on his knowledge or experience after the event. There are matters which a prudent man in conclusively presumed to know based on actual knowledge and experience. A reasonable man is also deemed to have knowledge of facts that a man should be expected to know based on ordinary human experience. A reasonable man should also be expected to know basic laws of nature and physics like gravity.

The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in such case by the circumstances of the case. Children wherever they go must be expected to act upon childlike instincts and impulses, and other who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly. Doctrines of implied invitation - leaving a tempting thing for children to play with exposed, where they would be likely to gather for that purposes Case: Valenzuela vs. CA 4. Standard of Conduct : Good Father of a Family Paterfamilias in Roman Law A 1173, NCC A reasonable man, man of ordinary intelligence and prudence, or ordinary reasaonable prudent man; man on top of a Clapham omnibus. Justice Holmes: When men live in society, a certain average conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare. The law considers what would be blameworthy in the average man, the man of ordinary intelligence and prudence and determines liability by that.

b. Children - the care and caution required of a child is according to his maturity and capacity only and this is to be determined in each case by the circumstances of the case. Under RPC, a child who is age 9 or below is exempt from criminal liability (conclusive presumption); a child over 9 but below 15 is exempted from criminal liability if he acted without discernment (disputable presumption). Under FC and Child and Youth Welfare Code, the choice of the child at least 12 years old where his custody is, is to be respected unless there is not valid reason to accord the same with respect; the consent of a child at least 10 years old of his adoption are required in adoption cases.

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Liability of children: 1. Liability without fault under RPC, a child who is 9 years old, can still be subsidiarily liable with his properties. 2. Vicarious liability of parents (A2180, NCC & A221 of FC) liability of own negligence of parents or guardian in the supervision of their children. Cases: Julian Del Rosario vs. Manila Electric Co. Taylor vs. Manila Electric Railroad and Light Co. Federico Ylarde vs. Edgardo Aquino c. Physical Disability The weakness of a person will not be an excuse in negligence cases. A weak, clumsy or accident prone person must come up to the standard of a reasonable man, otherwise, he will be considered negligent. Rule is different to real disability: The Constitution & RA. 7277 (Magna Carta for Disabled Persons) recognizes the right of disabled persons A person who is physically disabled cannot be expected to act as if he is not disabled. The standard of conduct therefore is that of a reasonable person under like disability. A person who is suffering from physical disability must, however, refrain from activities which a reasonable persons suffering from such disability would not undertake.

Cases: United States vs. Bonifacio Facts: Castillo, a deaf-mute was traveling along the railroad track. Castillo did not get off the aid track in spite of the whistles or warnings given by the accused. However, Accused caused the said train to run over Castillo, thereby killing Castillo instantly. The accused claimed that he first saw Castillo waling near the tack I the same direction as that of the train. Train was a heavy freight train, had just rounded a curve and the Castillo was about 175 meters ahead of the engine. The accuse immediately blew his whistle twice, and noticing, a few moments afterwards, that the man in front did not respond to the warning by stepping aside from the track. He tried slowing down the engine but did not succeed in slowing down in time to avoid running down the pedestrian. He did not attempt to stop his engine when he first saw the man walking along the side of the track. Accused claimed he was only running about 35kph. There was a heavy decline in the track from the turn at the curve to a point some distance beyond the place where the accident took place. Issue: W/N the Accused is negligent and therefore is liable for the death of Castillo, a deaf-mute Held: Death was result of regrettable accident, which was inevitable so far as the accused was concerned. Ordinarily, all that may properly be required of an engine driver under such circumstances is that he give warning of his approach, by blowing his whistle or ringing his bell until he is assured that the attention of the pedestrian has been attracted to the oncoming train.

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An engine driver may fairly assume that all persons walking or standing on or near the railroad track, except children of tender years, are aware of the danger to which they are exposed: and that they will take reasonable precautions to avoid accident, by looking and listening for the approach of trains, and stepping out of the way of danger when their attention is directed to an oncoming train. Engine drivers are not required to slow down or stop since the general traveling public would be exposed to great inconvenience and delay which may be, and is readily avoided by requiring all persons approaching a railroad track, to take reasonable precautions against danger from trains running at high speed. There was nothing in the appearance or conduct of Castillo which would have warned the accused that the man walking was deafmute.

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The care required must be commensurate with the danger involved and skill employed must correspond with the superior knowledge of the business which the law demands.

Case: Culion Ice, Fish & Electric Co. vs. Phil Motors Corp.

e. Nature of Activity In some instances, persons impose upon themselves certain obligations and non-compliance therewith will be considered negligence. There are activities which by nature impose duties to exercise a higher degree of diligence. ( Banks, common carriers) f. Intoxication It is but a circumstance to be considered with other evidence tending to prove negligence. However, different persons have different reactions to liquor. A person may take as much as several bottles of beer or several glasses of hard liquor and still remain sober and unaffected by the alcoholic drink. Proof of intoxication may in proper cases establish a presumption of negligence. Driving under the influence of alcohol is a violation of traffic regulations.

Roberts vs. State of Louisiana Facts: Mike Burson is totally blind. Been operating a concession stand inside the Post Office Buildings since 1974

d. Experts and Professionals An expert should exhibit the care and skill of one ordinarily skilled in the particular field that he is in. Those who undertake any work calling for special skills are required not only to exercise reasonable care in what they do but also possess a standard minimum of special knowledge and ability.

Case: E.M. Wright vs. Manila Electric R.R. & Light Co. g. Insanity

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Under RPC, an insane person is exempt from criminal liability. But there may be civil liability Bases: 1. Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it. 2. To induce those interested in the estate of the insane person to restrain and control him 3. The fear that an insanity defense would lead to false claims of insanity to avoid liability.

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applied by one judge in one case should not be regarded as propositions of law. Courts in each case must balance all conflicting interests and consider all the circumstances. Each and every case on questions of negligence is to be decided in accordance with the peculiar circumstances that present themselves.

h. Women A man is generally physically stronger than a woman and the same should be taken into consideration in determining if the defendant, who is a woman, was negligent.

Cases: Baltimore & Ohio R.R vs. Goodman Pokora vs. Wabash Ry. Co Preciolilta vs. Corliss vs The Manila Railroad Co. Cusi & Pobre vs. Phil National Railways 6. Other Factors to Consider in Determining Negligence A. Violations of Rules and Statutes Violation of statute may be treated either as: 1. A circumstance which establishes a presumption of negligence 2. Negligence per se 3. Circumstance which should be considered together with other circumstances as evidence of negligence. b. Statutes and Ordinances Statutes- standard is what the legislature has set Ordinances c. Administrative Rules violation of a rule promulgated by a Commission or Board is not negligence per se but it may be evidence of negligence d. Private Rules of Conduct - merely possible evidence of negligence e. Proximate Cause - requisites of quasi-delict must still be complete before an action based on negligence can prosper. Although violation of the statute is negligence

5. Standard vs. Specific Rules Rules are legal norms that are formal and mechanical, triggered by a few easily identified factual matters and are opaque in application to values Standard, are flexible, context-sensitive legal norms that require evaluative judgments in their application. Standard are the legal norms that are being followed in deciding negligence cases. The standard of reasonable care is set by law but its application in a particular case is a question of fact in the sense that propositions of good sense which are

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per se, the plaintiff must still present proof that the proximate cause of his injury is the negligence of the defendant. 7. Case: Vda. De Gregorio vs. Go Ching Bing f. Negligence Per Se Rule Reconsidered Two schools of thoughts: o Violation of statute is negligence per se o Violation of statute is a circumstance that gives rise to a presumption of negligence unless the law provides otherwise Relative ignorance of fact Relative indeterminacy of aim Equity - a rectification of legal justice Degrees of Negligence

JD-MBA / FEU-DLSU Papasa din ako!!!

A2231 of the NCC Gross negligence is negligence where there is want of even slight care and diligence; implying conscious indifference to consequences; utter disregard of consequences. Cases: Negros Navigation Co., Inc. vs. CA Benguet Electric Cooperative, Inc. vs. CA 8. Proof of Negligence A. Burden of Proof whoever assails should prove. Quantum of proof is preponderance of evidence. B. Presumptions - exception C. Res Ipsa Loquitur the thing speaks for itself proving the elements of negligence by means of circumstantial evidence. a. Rationale the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit interference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation. b. Cases when the doctrine was applied c. Cases when doctrine was held inapplicable d. Culpa Contractual

B. Practice and Custom The way of doing things in a particular situation may, in fact, have ripened into custom precisely because it is how a reasonable man would act under the same circumstances. Practice and custom are beneficial rather than prejudicial. Case: S.D. Martinez vs. William Van Buskirk C. Compliance with Rules and Statutes Non-compliance is not a sine qua non of negligence.