Torts and Damages

TORTS AND DAMAGES
I INTRODUCTION
A. Definition of Terms
1) Tort is an unlawful violation of a 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 (Robles v Castillo).
2) Damage is the loss, hurt or harm which results from the injury.
3) Damages are the pecuniary compensation, recompense, or satisfaction for an injury
sustained, or as otherwise expressed, the pecuniary consequences which the law
imposes for the breach of some duty or the violation of some right.
B. SOURCES OF TORTS AND DAMAGES
New Civil Code (Art 19, 20, 21)
Roman Law
Spanish
French
Anglo-American Law
C. DISTINCTION BETWEEN TORTS AND QUASI DELICT
Quasi-Delict v. Torts
Quasi-Delict is known as culpa-aquiliana is a civil law concept while Torts is Anglo-American
or common law concept. Torts is broader than culpa-aquiliana because it includes not only
negligence, but intentional criminal acts as well. However, Article 21 with Art 19 and 20, greatly
broadened the scope of the law on civil wrongs; it has become more supple and adaptable than
the Anglo-American law on torts.
II CONCEPT OF QUASI DELICT

A. Requisites
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 preexisting contractual relation between the parties, is called a quasi-delict and is governed by
the provisions of this Chapter.
1
FRATERNAL ORDER OF LEVIATHAN | LEVIATHAN
SORORITAS
FGU INSURANCE CORPORATION, petitioner, vs., COURT OF APPEALS, FILCAR

TRANSPORT, INC., and FORTUNE INSURANCE CORPORATION,respondents.
For damages suffered by a third party, may an action based on quasi-delict prosper
against a rent-a-car company and, consequently, its insurer for fault or negligence of the car
lessee in driving the rented vehicle?
This was a two-car collision at dawn. At around 3 o'clock of 21 April 1987, two (2) vehicles,
both Mitsubishi Colt Lancers, cruising northward along Epifanio de los Santos Avenue,
Mandaluyong City, figured in a traffic accident. The car bearing Plate No. PDG 435 owned
by Lydia F. Soriano was being driven at the outer lane of the highway by Benjamin
Jacildone, while the other car, with Plate No. PCT 792, owned by respondent FILCAR
Transport, Inc. (FILCAR), and driven by Peter Dahl-Jensen as lessee, was at the center
lane, left of the other vehicle. Upon approaching the corner of Pioneer Street, the car
owned by FILCAR swerved to the right hitting the left side of the car of Soriano. At that time
Dahl-Jensen, a Danish tourist, did not possess a Philippine driver's license.[1]
As a consequence, petitioner FGU Insurance Corporation, in view of its insurance contract
with Soriano, paid the latter P25,382.20. By way of subrogation,[2] it sued Dahl-Jensen and
respondent FILCAR as well as respondent Fortune Insurance Corporation (FORTUNE) as
insurer of FILCAR for quasi-delict before the Regional Trial Court of Makati City.
Unfortunately, summons was not served on Dahl-Jensen since he was no longer staying at
his given address; in fact, upon motion of petitioner, he was dropped from the complaint.
On 30 July 1991 the trial court dismissed the case for failure of petitioner to substantiate its
claim of subrogation.[3]
On 31 January 1995 respondent Court of Appeals affirmed the ruling of the trial court
although based on another ground, i.e., only the fault or negligence of Dahl-Jensen was
sufficiently proved but not that of respondent FILCAR.[4] In other words, petitioner failed to
establish its cause of action for sum of money based on quasi-delict.
In this appeal, petitioner insists that respondents are liable on the strength of the ruling in
MYC-Agro-Industrial Corporation v. Vda. de Caldo[5] that the registered owner of a vehicle is
liable for damages suffered by third persons although the vehicle is leased to another.
We find no reversible error committed by respondent court in upholding the dismissal of
petitioner's complaint. The pertinent provision is Art. 2176 of the Civil Code which
states: "Whoever by act or omission causes damage to another, there being fault or
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SORORITAS
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 x x x x"
To sustain a claim based thereon, the following requisites must concur: (a) damage
suffered by the plaintiff; (b) fault or negligence of the defendant; and, (c) connection of
cause and effect between the fault or negligence of the defendant and the damage incurred
by the plaintiff.[6]
We agree with respondent court that petitioner failed to prove the existence of the second
requisite, i.e., fault or negligence of defendant FILCAR, because only the fault or
negligence of Dahl-Jensen was sufficiently established, not that of FILCAR. It should be
noted that the damage caused on the vehicle of Soriano was brought about by the
circumstance that Dahl-Jensen swerved to the right while the vehicle that he was driving
was at the center lane. It is plain that the negligence was solely attributable to Dahl-Jensen
thus making the damage suffered by the other vehicle his personal liability. Respondent
FILCAR did not have any participation therein.
Article 2180 of the same Code which deals also with quasi-delict provides:
The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible for the
damages caused by the minor children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated persons who are
under their authority and live in their company.
The owners and managers of an establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the branches in which the latter are
employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not
engaged in any business or industry.
The State is responsible in like manner when it acts through a special agent; but not when
the damage has been caused by the official
to whom the task done properly pertains, in which case what is provided in article 2176
shall be applicable.
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SORORITAS
Lastly, teachers or heads of establishments of arts and trades shall be liable for damages
caused by their pupils and students or apprentices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the persons herein mentioned
prove that they observed all the diligence of a good father of a family to prevent damage.
The liability imposed by Art. 2180 arises by virtue of a presumption juris tantum of
negligence
on
the
part
of
the
persons
made
responsible thereunder, derived from their failure to exercise due care and vigilance over
the acts of subordinates to prevent them from causing damage.[7] Yet, as correctly observed
by respondent court, Art. 2180 is hardly applicable because none of the
circumstances mentioned therein obtains in the case under consideration. Respondent
FILCAR being engaged in a rent-a-car business was only the owner of the car leased to
Dahl-Jensen. As such, there was no vinculum juris between them as employer and
employee. Respondent FILCAR cannot in any way be responsible for the negligent act of
Dahl-Jensen, the former not being an employer of the latter.
We now correlate par. 5 of Art. 2180 with Art. 2184 of the same Code which provides: "In
motor vehicle mishap, the owner is solidarily liable with his driver, if the former, who was in
the vehicle, could have by the use of due diligence, prevented the misfortune x x x x If the
owner was not in the motor vehicle, the provisions of article 2180 are
applicable." Obviously, this provision of Art. 2184 is neither applicable because of the
absence of master-driver relationship between respondent FILCAR and DahlJensen. Clearly, petitioner has no cause of action against respondent FILCAR on the basis
of quasi-delict; logically, its claim against respondent FORTUNE can neither prosper.
Petitioner's insistence on MYC-Agro-Industrial Corporation is rooted in a misapprehension
of our ruling therein. In that case, the negligent and reckless operation of the truck owned
by petitioner corporation caused injuries to several persons and damage to
property. Intending to exculpate itself from liability, the corporation raised the defense that at
the time of the collision it hadno more control over the vehicle as it was leased to another;
and, that the driver was not its employee but of the lessee. The trial court was not
persuaded as it found that the true nature of the alleged lease contract was nothing more
than a disguise effected by the corporation to relieve itself of the burdens and
responsibilities of an employer. We upheld this finding and affirmed the declaration of joint
and several liability of the corporation with its driver.
WHEREFORE, the petition is DENIED. The decision of respondent Court of Appeals dated
31 January 1995 sustaining the dismissal of petitioner's complaint by the trial court is
AFFIRMED.Costs against petitioner.
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SORORITAS
B. Distinction between Culpa Aquiliana and Delict

Art. 365. 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 medium period; if it would
have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium
periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor
in its maximum period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and
maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor
in its minimum period shall be imposed.
When the execution of the act covered by this article shall have only resulted in damage to the
property of another, the offender shall be punished by a fine ranging from an amount equal to
the value of said damages to three times such value, but which shall in no case be less than
twenty-five pesos.
A fine not exceeding two hundred pesos and censure shall be imposed upon any person who,
by simple imprudence or negligence, shall cause some wrong which, if done maliciously, would
have constituted a light felony.
In the imposition of these penalties, the court shall exercise their sound discretion, without
regard to the rules prescribed in Article sixty-four.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to or lower than those provided in the first
two paragraphs of this article, in which case the court shall impose the penalty next lower in
degree than that which should be imposed in the period which they may deem proper to apply.
2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a
person shall be caused, in which case the defendant shall be punished by prision correccional
in its medium and maximum periods.
Reckless imprudence consists in voluntary, but without malice, doing or falling to do an act from
which material damage results by reason of inexcusable lack of precaution on the part of the
person performing of failing to perform such act, taking into consideration his employment or
occupation, degree of intelligence, physical condition and other circumstances regarding
persons, 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.
The penalty next higher in degree to those provided for in this article shall be imposed upon the
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SORORITAS
offender who fails to lend on the spot to the injured parties such help as may be in this hand to
give. (As amended by R.A. 1790, approved June 21, 1957).
DR.
NINEVETCH
CRUZ, petitioner, vs.
UMALI, respondents.
COURT
OF
APPEALS
and
LYDIA
DECISION
FRANCISCO, J.:
"Doctors are protected by a special law. They are not guarantors of care. They do not even
warrant a good result. They are not insurers against mishap or unusual
consequences. Furthermore they are not liable for honest mistake of judgment"[1]
The present case against petitioner is in the nature of a medical malpractice suit, which in
simplest term is the type of claim which a victim has available to him or her to redress a wrong
committed by a medical professional which has cause bodily harm. [2] In this jurisdiction,
however, such claims are most often brought as a civil action for damages under Article 2176 of
the Civil Code,[3] and in some instances, as a criminal case under Article 365 of the Revised
Penal Code[4] with which the civil action for damages is impliedly instituted. It is via the latter
type of action that the heirs of the deceased sought redress for the petitioner's alleged
imprudence and negligence in treating the deceased thereby causing her death. The petitioner
and one Dr. Lina Ercillo who was the attending anaesthesiologist during the operation of the
deceased were charged with "reckless imprudence and negligence resulting to (sic) homicide"
in an information which reads:
"That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the accused abovenamed, being then the
attending anaesthesiologist and surgeon, respectively, did then and there, in a negligence (sic),
careless, imprudent, and incompetent manner, and failing to supply or store sufficient provisions
and facilities necessary to meet any and all exigencies apt to arise before, during and/or after a
surgical operation causing by such negligence, carelessness, imprudence, and incompetence,
and causing by such failure, including the lack of preparation and foresight needed to avert a
tragedy, the untimely death of said Lydia Umali on the day following said surgical operation."[5]
Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to the abovementioned charge. On March 4, 1994, the Municipal Trial Court in Cities (MTCC) of San Pablo
City rendered a decision, the dispositive portion of which is hereunder quoted as follows:
"WHEREFORE, the court finds the accused Dr. Lina Ercillo not guilty of the offense charged for
insufficiency of evidence while her co-accused Dra. Ninevetch Cruz is hereby held responsible
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SORORITAS
for the death of Lydia Umali on March 24, 1991, and therefore guilty under Art. 365 of the
Revised Penal Code, and she is hereby sentenced to suffer the penalty of 2 months and 1 day
imprisonment of arresto mayor with costs."[6]
The petitioner appealed her conviction to the Regional Trial Court (RTC) which affirmed in
toto the decision of the MTCC[7] prompting the petitioner to file a petition for review with the
Court of Appeals but to no avail. Hence this petition for review on certiorari assailing the
decision promulgated by the Court of Appeals on October 24, 1995 affirming petitioner's
conviction with modification that she is further directed to pay the heirs of Lydia
Umali P50,000.00 as indemnity for her death.[8]
In substance, the petition brought before this Court raises the issue of whether or not
petitioner's conviction of the crime of reckless imprudence resulting in homicide, arising from an
alleged medical malpractice, is supported by the evidence on record.
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied her
mother to the Perpetual Help Clinic and General Hospital situated in Balagtas Street, San Pablo
City, Laguna. They arrived at the said hospital at around 4:30 in the afternoon of the same day.
[9]
Prior to March 22, 1991, Lydia was examined by the petitioner who found a "myoma" [10] in her
uterus, and scheduled her for a hysterectomy operation on March 23, 1991. [11] Rowena and her
mother slept in the clinic on the evening of March 22, 1991 as the latter was to be operated on
the next day at 1:00 o'clock in the afternoon.[12] According to Rowena, she noticed that the clinic
was untidy and the window and the floor were very dusty prompting her to ask the attendant for
a rag to wipe the window and the floor with. [13] Because of the untidy state of the clinic, Rowena
tried to persuade her mother not to proceed with the operation. [14] The following day, before her
mother was wheeled into the operating room, Rowena asked the petitioner if the operation could
be postponed. The petitioner called Lydia into her office and the two had a conversation. Lydia
then informed Rowena that the petitioner told her that she must be operated on as scheduled.[15]
Rowena and her other relatives, namely her husband, her sister and two aunts waited
outside the operating room while Lydia underwent operation. While they were waiting, Dr. Ercillo
went out of the operating room and instructed them to buy tagamet ampules which Rowena's
sister immediately bought. About one hour had passed when Dr. Ercillo came out again this time
to ask them to buy blood for Lydia. They bought type "A" blood from the St. Gerald Blood Bank
and the same was brought by the attendant into the operating room. After the lapse of a few
hours, the petitioner informed them that the operation was finished. The operating staff then
went inside the petitioner's clinic to take their snacks. Some thirty minutes after, Lydia was
brought out of the operating room in a stretcher and the petitioner asked Rowena and the other
relatives to buy additional blood for Lydia. Unfortunately, they were not able to comply with
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SORORITAS
petitioner's order as there was no more type "A" blood available in the blood bank. Thereafter, a
person arrived to donate blood which was later transfused to Lydia. Rowena then noticed her
mother, who was attached to an oxygen tank, gasping for breath. Apparently the oxygen supply
had run out and Rowena's husband together with the driver of the accused had to go to the San
Pablo District Hospital to get oxygen. Lydia was given the fresh supply of oxygen as soon as it
arrived.[16] But at around 10:00 o'clock P.M. she went into shock and her blood pressure dropped
to 60/50. Lydia's unstable condition necessitated her transfer to the San Pablo District Hospital
so she could be connected to a respirator and further examined. [17] The transfer to the San
Pablo City District Hospital was without the prior consent of Rowena nor of the other relatives
present who found out about the intended transfer only when an ambulance arrived to take
Lydia to the San Pablo District Hospital. Rowena and her other relatives then boarded a tricycle
and followed the ambulance.[18]
Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the operating
room and the petitioner and Dr. Ercillo re-operated on her because there was blood oozing from
the abdominal incision.[19] The attending physicians summoned Dr. Bartolome Angeles, head of
the Obstetrics and Gynecology Department of the San Pablo District Hospital. However, when
Dr. Angeles arrived, Lydia was already in shock and possibly dead as her blood pressure was
already 0/0. Dr. Angeles then informed petitioner and Dr. Ercillo that there was nothing he could
do to help save the patient.[20] While petitioner was closing the abdominal wall, the patient died.
[21]
Thus, on March 24, 1991, at 3:00 o'clock in the morning, Lydia Umali was pronounced dead.
Her death certificate states "shock" as the immediate cause of death and "Disseminated
Intravascular Coagulation (DIC)" as the antecedent cause.[22]
In convicting the petitioner, the MTCC found the following circumstances as sufficient basis
to conclude that she was indeed negligent in the performance of the operation:
"x x x, the clinic was untidy, there was lack of provision like blood and oxygen to prepare for any
contingency that might happen during the operation. The manner and the fact that the patient
was brought to the San Pablo District Hospital for reoperation indicates that there was
something wrong in the manner in which Dra. Cruz conducted the operation. There was no
showing that before the operation, accused Dr. Cruz had conducted a cardio pulmonary
clearance or any typing of the blood of the patient. It was (sic) said in medical parlance that the
"abdomen of the person is a temple of surprises" because you do not know the whole thing the
moment it was open (sic) and surgeon must be prepared for any eventuality thereof. The patient
(sic) chart which is a public document was not presented because it is only there that we could
determine the condition of the patient before the surgery. The court also noticed in Exh. "F-1"
that the sister of the deceased wished to postpone the operation but the patient was prevailed
upon by Dra. Cruz to proceed with the surgery. The court finds that Lydia Umali died because of
the negligence and carelessness of the surgeon Dra. Ninevetch Cruz because of loss of blood
during the operation of the deceased for evident unpreparedness and for lack of skill, the reason
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SORORITAS
why the patient was brought for operation at the San Pablo City District Hospital. As such, the
surgeon should answer for such negligence. With respect to Dra. Lina Ercillo, the
anaesthesiologist, there is no evidence to indicate that she should be held jointly liable with Dra.
Cruz who actually did the operation."[23]
The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's
declaration of "incompetency, negligence and lack of foresight and skill of appellant (herein
petitioner) in handling the subject patient before and after the operation." [24] And likewise
affirming the petitioner's conviction, the Court of Appeals echoed similar observations, thus:
"x x x. While we may grant that the untidiness and filthiness of the clinic may not by itself
indicate negligence, it nevertheless shows the absence of due care and supervision over her
subordinate employees. Did this unsanitary condition permeate the operating room? Were the
surgical instruments properly sterilized? Could the conditions in the OR have contributed to the
infection of the patient? Only the petitioner could answer these, but she opted not to testify. This
could only give rise to the presumption that she has nothing good to testify on her defense.
Anyway, the alleged "unverified statement of the prosecution witness" remains unchallenged
and unrebutted.
Likewise undisputed is the prosecution's version indicating the following facts: that the accused
asked the patient's relatives to buy Tagamet capsules while the operation was already in
progress; that after an hour, they were also asked to buy type "A" blood for the patient; that after
the surgery, they were again asked to procure more type "A" blood, but such was not anymore
available from the source; that the oxygen given to the patient was empty; and that the son-inlaw of the patient, together with a driver of the petitioner, had to rush to the San Pablo City
District Hospital to get the much-needed oxygen. All these conclusively show that the petitioner
had not prepared for any unforeseen circumstances before going into the first surgery, which
was not emergency in nature, but was elective or pre-scheduled; she had no ready antibiotics,
no prepared blood, properly typed and cross-matched, and no sufficient oxygen supply.
Moreover, there are a lot of questions that keep nagging Us. Was the patient given any cardiopulmonary clearance, or at least a clearance by an internist, which are standard requirements
before a patient is subjected to surgery. Did the petitioner determine as part of the pre-operative
evaluation, the bleeding parameters of the patient, such as bleeding time and clotting time?
There is no showing that these were done. The petitioner just appears to have been in a hurry
to perform the operation, even as the family wanted the postponement to April 6, 1991.
Obviously, she did not prepare the patient; neither did she get the family's consent to the
operation. Moreover, she did not prepare a medical chart with instructions for the patient's care.
If she did all these, proof thereof should have been offered. But there is none. Indeed, these are
overwhelming evidence of recklessness and imprudence."[25]
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This court, however, holds differently and finds the foregoing circumstances insufficient to
sustain a judgment of conviction against the petitioner for the crime of reckless imprudence
resulting in homicide. The elements of reckless imprudence are: (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; and (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.
Whether or not a physician has committed an "inexcusable lack of precaution" in the
treatment of his patient is to be determined according to the standard of care observed by other
members of the profession in good standing under similar circumstances bearing in mind the
advanced state of the profession at the time of treatment or the present state of medical
science.[26] In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al.,[27] this Court
stated that in accepting a case, a doctor in effect represents that, having the needed training
and skill possessed by physicians and surgeons practicing in the same field, he will employ
such training, care and skill in the treatment of his patients. He therefore has a duty to use at
least the same level of care that any other reasonably competent doctor would use to treat a
condition under the same circumstances. It is in this aspect of medical malpractice that expert
testimony is essential to establish not only the standard of care of the profession but also that
the physician's conduct in the treatment and care falls below such standard. [28] Further,
inasmuch as the causes of the injuries involved in malpractice actions are determinable only in
the light of scientific knowledge, it has been recognized that expert testimony is usually
necessary to support the conclusion as to causation.[29]
Immediately apparent from a review of the records of this case is the absence of any expert
testimony on the matter of the standard of care employed by other physicians of good standing
in the conduct of similar operations. The prosecution's expert witnesses in the persons of Dr.
Floresto Arizala and Dr. Nieto Salvador, Jr. of the National Bureau of Investigation (NBI) only
testified as to the possible cause of death but did not venture to illuminate the court on the
matter of the standard of care that petitioner should have exercised.
All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness;
the lack of provisions such as blood, oxygen, and certain medicines; the failure to subject the
patient to a cardio-pulmonary test prior to the operation; the omission of any form of blood
typing before transfusion; and even the subsequent transfer of Lydia to the San Pablo Hospital
and the reoperation performed on her by the petitioner. But while it may be true that the
circumstances pointed out by the courts below seemed beyond cavil to constitute reckless
imprudence on the part of the surgeon, this conclusion is still best arrived at not through the
educated surmises nor conjectures of laymen, including judges, but by the unquestionable
knowledge of expert witnesses. For whether a physician or surgeon has exercised the requisite
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SORORITAS
degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of
expert opinion.[30] The deference of courts to the expert opinion of qualified physicians stems
from its realization that the latter possess unusual technical skills which laymen in most
instances are incapable of intelligently evaluating.[31] Expert testimony should have been offered
to prove that the circumstances cited by the courts below are constitutive of conduct falling
below the standard of care employed by other physicians in good standing when performing the
same operation. It must be remembered that when the qualifications of a physician are
admitted, as in the instant case, there is an inevitable presumption that in proper cases he takes
the necessary precaution and employs the best of his knowledge and skill in attending to his
clients, unless the contrary is sufficiently established. [32] This presumption is rebuttable by expert
opinion which is so sadly lacking in the case at bench.
Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic; the
lack of provisions; the failure to conduct pre-operation tests on the patient; and the subsequent
transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the
petitioner do indicate, even without expert testimony, that petitioner was recklessly imprudent in
the exercise of her duties as a surgeon, no cogent proof exists that any of these circumstances
caused petitioner's death. Thus, the absence of the fourth element of reckless imprudence: that
the injury to the person or property was a consequence of the reckless imprudence.
In litigations involving medical negligence, the plaintiff has the burden of establishing
appellant's negligence and for a reasonable conclusion of negligence, there must be proof of
breach of duty on the part of the surgeon as well as a casual connection of such breach and the
resulting death of his patient.[33] In Chan Lugay v. St Luke's Hospital, Inc.,[34] where the attending
physician was absolved of liability for the death of the complainant's wife and newborn baby, this
court held that:
"In order that there may be a recovery for an injury, however, it must be shown that the 'injury for
which recovery is sought must be the legitimate consequence of the wrong done; the
connection between the negligence and the injury must be a direct and natural sequence of
events, unbroken by intervening efficient causes.' In other words, the negligence must be the
proximate cause of the injury. For, 'negligence, no matter in what it consists, cannot create a
right of action unless it is the proximate cause of the injury complained of.' And 'the proximate
cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result would not have
occurred.'''[35] (Underscoring supplied.)
Dr. Arizala who conducted an autopsy on the body of the deceased summarized his
findings as follows:
"Atty. Cachero:
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Q. You mentioned about your Autopsy Report which has been marked as Exh. "A-1-b".
There appears here a signature above the typewritten name Floresto Arizala, Jr.,
whose signature is that?
A. That is my signature, sir.
Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?
A. Only as to the autopsy report no. 91-09, the time and place and everything after the
post mortem findings, sir.
Q. You mentioned on your "Post Mortem Findings" about surgical incision, 14:0 cm.,
infraumbilical area, anterior abdominal area, midline, will you please explain that in
your own language?
A. There was incision wound (sic) the area just below the navel, sir.
Q. And the last paragraph of the postmortem findings which I read: Uterus, pearshaped and pale measuring 7.5 x 5.5 x 5.0 cm, with some surface nodulation of
the fundic area posteriorly. Cut-section shows diffusely pale myometrium with
areas of streak induration. The ovaries and adnexal structures are missing with the
raw surfaces patched with clotted blood. Surgical sutures were noted on the
operative site.
Intestines and mesenteries are pale with blood clots noted between the
mesentric folds.
Hemoperitonium: 300 s.s.,
right paracolic gutter,
50 c.c., left paracolic gutter
200 c.c., mesentric area,
100 c.c., right pelvic gutter
stomach empty.
Other visceral organs, pale.',
will you please explain that on (sic) your own language or in ordinary
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SORORITAS
A. There was a uterus which was not attached to the adnexal structures namely
ovaries which were not present and also sign of previous surgical operation and
there were (sic) clotted blood, sir.
Q. How about the ovaries and adnexal structures?
A. They are missing, sir.
Q. You mean to say there are no ovaries?
A. During that time there are no ovaries, sir.
Q. And there were likewise sign of surgical sutures?
A. Yes, sir.
Q. How about the intestines and mesenteries are place (sic) with blood clots noted
between the mesenteric folds, will you please explain on (sic) this?
A. In the peritoneal cavity, they are mostly perritonial blood.
Q. And what could have caused this blood?
A. Well, ordinarily blood is found inside the blood vessel. Blood were (sic) outside as a
result of the injuries which destroyed the integrity of the vessel allowing blood to
sip (sic) out, sir.
Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can you tell the
court the cause of death?
A. Yes, sir. The cause of death is: Gross findings are compatible with hemorrhagic
shock.
Q. Can you tell the us what could have caused this hemorrhagic shock?
A. Well hemorrhagic shock is the result of blood loss.
Q. What could have the effect of that loss of blood?
A. Unattended hemorrhage, sir.[36] (Underscoring supplied.)
The foregoing was corroborated by Dr. Nieto Salvador:
13
SORORITAS
"Q. And were you able to determine the cause of death by virtue of the examination of
the specimen submitted by Dr. Arizala?
A. Without knowledge of the autopsy findings it would be difficult for me to determine
the cause of death, sir.
Q. Have you examined the post mortem of Dr. Arizala?
A. Yes, sir, and by virtue of the autopsy report in connection with your pathology report.
Q. What could have caused the death of the victim?
A. This pathologic examination are (sic) compatible with the person who died, sir.
Q. Will you explain to us the meaning of hemorrhagic compatible?
A. It means that a person died of blood loss. Meaning a person died of nonreplacement of blood and so the victim before she died there was shock of
diminish of blood of the circulation. She died most probably before the actual
complete blood loss, sir.
Court: Is it possible doctor that the loss of the blood was due on (sic) operation?
A. Based on my pathology findings, sir.
Q. What could have caused this loss of blood?
A. Many, sir. A patient who have undergone surgery. Another may be a blood vessel
may be cut while on operation and this cause (sic) bleeding, or may be set in the
course of the operation, or may be (sic) he died after the operation. Of course
there are other cause (sic).
Atty. Cachero:
Q. Especially so doctor when there was no blood replacement?
A. Yes, sir."[37] (Underscoring supplied.)
The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the cause
of death. However, as likewise testified to by the expert witnesses in open court, hemorrhage or
hemorrhagic shock during surgery may be caused by several different factors. Thus, Dr.
Salvador's elaboration on the matter:
14
SORORITAS
"Atty. Pascual:
Q. Doctor, among the causes of hemorrhage that you mentioned you said that it could
be at the moment of operation when one losses (sic) control of the presence, is
that correct? During the operation there is lost (sic) of control of the cut vessel?
A. Yes, sir.
Q. Or there is a failure to ligate a vessel of considerable size?
A. Yes, sir.
Q. Or even if the vessel were ligated the knot may have slipped later on?
A. Yes, sir.
Q. And you also mentioned that it may be possible also to some clotting defect, is
that correct?
A. May be (sic)."[38] (Underscoring supplied).
Defense witness, Dr. Bu C. Castro also gave the following expert opinion:
"Q. Doctor even a patient after an operations (sic) would suffer hemorrage what would
be the possible causes of such hemorrage (sic)?
A. Among those would be what we call Intravascular Coagulation and this is the reason
for the bleeding, sir, which cannot be prevented by anyone, it will happen to
anyone, anytime and to any persons (sic), sir.
COURT:
What do you think of the cause of the bleeding, the cutting or the operations done in
the body?
A. Not related to this one, the bleeding here is not related to any cutting or operation
that I (sic) have done.
Q. Aside from the DIC what could another causes (sic) that could be the cause for the
hemorrhage or bleeding in a patient by an operations (sic)?
15
SORORITAS
A. In general sir, if there was an operations (sic) and it is possible that the ligature in
the suture was (sic) become (sic) loose, it is (sic) becomes loose if proven.
xxxxxxxxx
Q. If the person who performed an autopsy does not find any untight (sic) clot (sic)
blood vessel or any suture that become (sic) loose the cause of the bleeding could
not be attributed to the fault of the subject?
A. Definitely, sir."[39] (Underscoring supplied.)
According to both doctors, the possible causes of hemorrhage during an operation are: (1)
the failure of the surgeon to tie or suture a cut blood vessel; (2) allowing a cut blood vessel to
get out of control; (3) the subsequent loosening of the tie or suture applied to a cut blood vessel;
and (4) and a clotting defect known as DIC. It is significant to state at this juncture that the
autopsy conducted by Dr. Arizala on the body of Lydia did not reveal any untied or unsutured cut
blood vessel nor was there any indication that the tie or suture of a cut blood vessel had
become loose thereby causing the hemorrhage.[40] Hence the following pertinent portion of Dr.
Arizala's testimony:
"Q: Doctor, in examining these structures did you know whether these were sutured
ligature or plain ligature
A: Ligature, sir.
Q: We will explain that later on. Did you recall if the cut structures were tied by first
suturing it and then tying a knot or the tie was merely placed around the cut
structure and tied?
A: I cannot recall, sir.
Q: As a matter of fact, you cannot recall because you did not even bothered (sic) to
examine, is that correct?
A: Well, I bothered enough to know that they were sutured, sir.
Q: So, therefore, Doctor, you would not know whether any of the cut structures were
not sutured or tied neither were you able to determine whether any loose suture
was found in the peritoneal cavity?
A: I could not recall any loose sutured (sic), sir."[41]
16
SORORITAS
On the other hand, the findings of all three doctors do not preclude the probability that DIC
caused the hemorrhage and consequently, Lydia's death. DIC which is a clotting defect creates
a serious bleeding tendency and when massive DIC occurs as a complication of surgery leaving
raw surface, major hemorrhage occurs.[42] And as testified to by defense witness, Dr. Bu C.
Castro, hemorrhage due to DIC "cannot be prevented, it will happen to anyone, anytime." [43] He
testified further:
"Q. Now, under the circumstance one of the possibility as you mentioned in (sic) DIC?
A. Yes, sir.
Q. And you mentioned that it cannot be prevented?
A. Yes, sir.
Q. Can you even predict if it really happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of autopsy that will tell you whether this patient
suffered among such things as DIC?
A. Well, I did reserve because of the condition of the patient.
Q. Now, Doctor you said that you went through the record of the deceased Lydia Umali
looking for the chart, the operated (sic) records, the post mortem findings on the
histophanic (sic) examination based on your examination of record, doctor, can
you more or less says (sic) what part are (sic) concerned could have been the
caused (sic) of death of this Lydia Umali?
A. As far as the medical record is concern (sic) the caused (sic) of death is
dessimulated (sic) Intra Vascular Coagulation or the DIC which resulted to
hemorrhage or bleedings, sir.
Q. Doctor based on your findings then there is knowing (sic) the doctor would say
whether the doctor her (sic) has been (sic) fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the (sic) based on finding they just read the chart as
well as the other record.
17
SORORITAS
ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding made.
COURT:
He is only reading the record.
ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part of the surgeon, sir." [44]
This court has no recourse but to rely on the expert testimonies rendered by both
prosecution and defense witnesses that substantiate rather than contradict petitioner's
allegation that the cause of Lydia's death was DIC which, as attested to by an expert witness,
cannot be attributed to the petitioner's fault or negligence. The probability that Lydia's death was
caused by DIC was unrebutted during trial and has engendered in the mind of this Court a
reasonable doubt as to the petitioner's guilt. Thus, her acquittal of the crime of reckless
imprudence resulting in homicide. While we condole with the family of Lydia Umali, our hands
are bound by the dictates of justice and fair dealing which hold inviolable the right of an accused
to be presumed innocent until proven guilty beyond reasonable doubt. Nevertheless, this Court
finds the petitioner civilly liable for the death of Lydia Umali, for while a conviction of a crime
requires proof beyond reasonable doubt, only a preponderance of evidence is required to
establish civil liability.[45]
The petitioner is a doctor in whose hands a patient puts his life and limb. For insufficiency of
evidence this Court was not able to render a sentence of conviction but it is not blind to the
reckless and imprudent manner in which the petitioner carried out her duties. A precious life has
been lost and the circumstances leading thereto exacerbated the grief of those left behind. The
heirs of the deceased continue to feel the loss of their mother up to the present time [46] and this
Court is aware that no amount of compassion and commiseration nor words of bereavement
can suffice to assuage the sorrow felt for the loss of a loved one. Certainly, the award of moral
and exemplary damages in favor of the heirs of Lydia Umali are proper in the instant case.
WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is hereby
ACQUITTED of the crime of reckless imprudence resulting in homicide but is ordered to pay the
18
SORORITAS
heirs of the deceased Lydia Umali the amount of FIFTY THOUSAND PESOS (P50,000.00) as
civil liability, ONE HUNDRED THOUSAND PESOS (P100,000.00) as moral damages, and
FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages.
Distinctions between Crimes and Culpa Aquiliana:

Crimes:
1. Crimes affected the public interest.
2. Penal law punishes/ corrects the criminal act.
3. Only acts covered by Penal Law are punished (Barredo vs Garcia, 73 Phil 607; J.
Bocobo, 1940 : Taxi c lied with Carretela)
4. Guilt proven beyond reasonable doubt.
5. Reservation to file separate civil action. No reservation, civil action is impliedly instituted in
the criminal action.
6. Employers liability is subsidiary.
Culpa Aquiliana:
1. Only private concern.
2. Repairs the damage by indemnification.
3. Covers all acts that are faulty or negligent.
4. Preponderance of evidence.
5. No reservation its independent from crime.
6. Employers liability is solidary (Fabre Jr. vs CA, 259 SCRA 426)
C. Distinction between Culpa Aquiliana and Culpa Contractual
JOSEPH SALUDAGA, petitioner,
vs.
FAR EASTERN UNIVERSITY and EDILBERTO C. DE JESUS in his capacity as President of
FEU,respondents.
DECISION
YNARES-SANTIAGO, J.:
This Petition for Review on Certiorari1 under Rule 45 of the Rules of Court assails the June 29, 2007
Decision2 of the Court of Appeals in CA-G.R. CV No. 87050, nullifying and setting aside the
November 10, 2004 Decision3 of the Regional Trial Court of Manila, Branch 2, in Civil Case No. 9889483 and dismissing the complaint filed by petitioner; as well as its August 23, 2007
Resolution4 denying the Motion for Reconsideration.5
The antecedent facts are as follows:
19
SORORITAS
Petitioner Joseph Saludaga was a sophomore law student of respondent Far Eastern University
(FEU) when he was shot by Alejandro Rosete (Rosete), one of the security guards on duty at the
school premises on August 18, 1996. Petitioner was rushed to FEU-Dr. Nicanor Reyes Medical
Foundation (FEU-NRMF) due to the wound he sustained.6 Meanwhile, Rosete was brought to the
police station where he explained that the shooting was accidental. He was eventually released
considering that no formal complaint was filed against him.
Petitioner thereafter filed a complaint for damages against respondents on the ground that they
breached their obligation to provide students with a safe and secure environment and an
atmosphere conducive to learning. Respondents, in turn, filed a Third-Party Complaint 7 against
Galaxy Development and Management Corporation (Galaxy), the agency contracted by respondent
FEU to provide security services within its premises and Mariano D. Imperial (Imperial), Galaxy's
President, to indemnify them for whatever would be adjudged in favor of petitioner, if any; and to pay
attorney's fees and cost of the suit. On the other hand, Galaxy and Imperial filed a Fourth-Party
Complaint against AFP General Insurance.8
On November 10, 2004, the trial court rendered a decision in favor of petitioner, the dispositive
portion of which reads:
WHEREFORE, from the foregoing, judgment is hereby rendered ordering:
1. FEU and Edilberto de Jesus, in his capacity as president of FEU to pay jointly and
severally Joseph Saludaga the amount of P35,298.25 for actual damages with 12%
interest per annum from the filing of the complaint until fully paid; moral damages of
P300,000.00, exemplary damages of P500,000.00, attorney's fees of P100,000.00
and cost of the suit;
2. Galaxy Management and Development Corp. and its president, Col. Mariano
Imperial to indemnify jointly and severally 3rd party plaintiffs (FEU and Edilberto de
Jesus in his capacity as President of FEU) for the above-mentioned amounts;
3. And the 4th party complaint is dismissed for lack of cause of action. No
pronouncement as to costs.
SO ORDERED.9
Respondents appealed to the Court of Appeals which rendered the assailed Decision, the decretal
portion of which provides, viz:
WHEREFORE, the appeal is hereby GRANTED. The Decision dated November 10, 2004 is
hereby REVERSED and SET ASIDE. The complaint filed by Joseph Saludaga against
appellant Far Eastern University and its President in Civil Case No. 98-89483 is
DISMISSED.
20
SORORITAS
SO ORDERED.10
Petitioner filed a Motion for Reconsideration which was denied; hence, the instant petition based on
the following grounds:
THE COURT OF APPEALS SERIOUSLY ERRED IN MANNER CONTRARY TO LAW AND
JURISPRUDENCE IN RULING THAT:
5.1. THE SHOOTING INCIDENT IS A FORTUITOUS EVENT;
5.2. RESPONDENTS ARE NOT LIABLE FOR DAMAGES FOR THE INJURY RESULTING
FROM A GUNSHOT WOUND SUFFERED BY THE PETITIONER FROM THE HANDS OF
NO LESS THAN THEIR OWN SECURITY GUARD IN VIOLATION OF THEIR BUILT-IN
CONTRACTUAL OBLIGATION TO PETITIONER, BEING THEIR LAW STUDENT AT THAT
TIME, TO PROVIDE HIM WITH A SAFE AND SECURE EDUCATIONAL ENVIRONMENT;
5.3. SECURITY GAURD, ALEJANDRO ROSETE, WHO SHOT PETITIONER WHILE HE
WAS WALKING ON HIS WAY TO THE LAW LIBRARY OF RESPONDENT FEU IS NOT
THEIR EMPLOYEE BY VIRTUE OF THE CONTRACT FOR SECURITY SERVICES
BETWEEN GALAXY AND FEU NOTWITHSTANDING THE FACT THAT PETITIONER, NOT
BEING A PARTY TO IT, IS NOT BOUND BY THE SAME UNDER THE PRINCIPLE OF
RELATIVITY OF CONTRACTS; and
5.4. RESPONDENT EXERCISED DUE DILIGENCE IN SELECTING GALAXY AS THE
AGENCY WHICH WOULD PROVIDE SECURITY SERVICES WITHIN THE PREMISES OF
RESPONDENT FEU.11
Petitioner is suing respondents for damages based on the alleged breach of student-school contract
for a safe learning environment. The pertinent portions of petitioner's Complaint read:
6.0. At the time of plaintiff's confinement, the defendants or any of their representative did not
bother to visit and inquire about his condition. This abject indifference on the part of the
defendants continued even after plaintiff was discharged from the hospital when not even a
word of consolation was heard from them. Plaintiff waited for more than one (1) year for the
defendants to perform their moral obligation but the wait was fruitless. This indifference and
total lack of concern of defendants served to exacerbate plaintiff's miserable condition.
xxxx
11.0. Defendants are responsible for ensuring the safety of its students while the latter are
within the University premises. And that should anything untoward happens to any of its
students while they are within the University's premises shall be the responsibility of the
defendants. In this case, defendants, despite being legally and morally bound, miserably
21
SORORITAS
failed to protect plaintiff from injury and thereafter, to mitigate and compensate plaintiff for
said injury;
12.0. When plaintiff enrolled with defendant FEU, a contract was entered into between them.
Under this contract, defendants are supposed to ensure that adequate steps are taken to
provide an atmosphere conducive to study and ensure the safety of the plaintiff while inside
defendant FEU's premises. In the instant case, the latter breached this contract when
defendant allowed harm to befall upon the plaintiff when he was shot at by, of all people,
their security guard who was tasked to maintain peace inside the campus. 12
In Philippine School of Business Administration v. Court of Appeals,13 we held that:
When an academic institution accepts students for enrollment, there is established a contract
between them, resulting in bilateral obligations which both parties are bound to comply with.
For its part, the school undertakes to provide the student with an education that would
presumably suffice to equip him with the necessary tools and skills to pursue higher
education or a profession. On the other hand, the student covenants to abide by the school's
academic requirements and observe its rules and regulations.
Institutions of learning must also meet the implicit or "built-in" obligation of providing their
students with an atmosphere that promotes or assists in attaining its primary undertaking of
imparting knowledge. Certainly, no student can absorb the intricacies of physics or higher
mathematics or explore the realm of the arts and other sciences when bullets are flying or
grenades exploding in the air or where there looms around the school premises a constant
threat to life and limb. Necessarily, the school must ensure that adequate steps are taken to
maintain peace and order within the campus premises and to prevent the breakdown
thereof.14
It is undisputed that petitioner was enrolled as a sophomore law student in respondent FEU. As
such, there was created a contractual obligation between the two parties. On petitioner's part, he
was obliged to comply with the rules and regulations of the school. On the other hand, respondent
FEU, as a learning institution is mandated to impart knowledge and equip its students with the
necessary skills to pursue higher education or a profession. At the same time, it is obliged to ensure
and take adequate steps to maintain peace and order within the campus.
It is settled that in culpa contractual, the mere proof of the existence of the contract and the failure of
its compliance justify, prima facie, a corresponding right of relief. 15 In the instant case, we find that,
when petitioner was shot inside the campus by no less the security guard who was hired to maintain
peace and secure the premises, there is a prima facie showing that respondents failed to comply
with its obligation to provide a safe and secure environment to its students.
In order to avoid liability, however, respondents aver that the shooting incident was a fortuitous event
because they could not have reasonably foreseen nor avoided the accident caused by Rosete as he
22
SORORITAS
was not their employee;16 and that they complied with their obligation to ensure a safe learning
environment for their students by having exercised due diligence in selecting the security services of
Galaxy.
After a thorough review of the records, we find that respondents failed to discharge the burden of
proving that they exercised due diligence in providing a safe learning environment for their students.
They failed to prove that they ensured that the guards assigned in the campus met the requirements
stipulated in the Security Service Agreement. Indeed, certain documents about Galaxy were
presented during trial; however, no evidence as to the qualifications of Rosete as a security guard for
the university was offered.
Respondents also failed to show that they undertook steps to ascertain and confirm that the security
guards assigned to them actually possess the qualifications required in the Security Service
Agreement. It was not proven that they examined the clearances, psychiatric test results, 201 files,
and other vital documents enumerated in its contract with Galaxy. Total reliance on the security
agency about these matters or failure to check the papers stating the qualifications of the guards is
negligence on the part of respondents. A learning institution should not be allowed to completely
relinquish or abdicate security matters in its premises to the security agency it hired. To do so would
result to contracting away its inherent obligation to ensure a safe learning environment for its
students.
Consequently, respondents' defense of force majeure must fail. In order for force majeure to be
considered, respondents must show that no negligence or misconduct was committed that may have
occasioned the loss. An act of God cannot be invoked to protect a person who has failed to take
steps to forestall the possible adverse consequences of such a loss. One's negligence may have
concurred with an act of God in producing damage and injury to another; nonetheless, showing that
the immediate or proximate cause of the damage or injury was a fortuitous event would not exempt
one from liability. When the effect is found to be partly the result of a person's participation - whether
by active intervention, neglect or failure to act - the whole occurrence is humanized and removed
from the rules applicable to acts of God.17
Article 1170 of the Civil Code provides that those who are negligent in the performance of their
obligations are liable for damages. Accordingly, for breach of contract due to negligence in providing
a safe learning environment, respondent FEU is liable to petitioner for damages. It is essential in the
award of damages that the claimant must have satisfactorily proven during the trial the existence of
the factual basis of the damages and its causal connection to defendant's acts. 18
In the instant case, it was established that petitioner spent P35,298.25 for his hospitalization and
other medical expenses.19 While the trial court correctly imposed interest on said amount, however,
the case at bar involves an obligation arising from a contract and not a loan or forbearance of
money. As such, the proper rate of legal interest is six percent (6%) per annum of the amount
demanded. Such interest shall continue to run from the filing of the complaint until the finality of this
23
SORORITAS
Decision.20 After this Decision becomes final and executory, the applicable rate shall be twelve
percent (12%) per annum until its satisfaction.
The other expenses being claimed by petitioner, such as transportation expenses and those incurred
in hiring a personal assistant while recuperating were however not duly supported by receipts. 21 In
the absence thereof, no actual damages may be awarded. Nonetheless, temperate damages under
Art. 2224 of the Civil Code may be recovered where it has been shown that the claimant suffered
some pecuniary loss but the amount thereof cannot be proved with certainty. Hence, the amount of
P20,000.00 as temperate damages is awarded to petitioner.
As regards the award of moral damages, there is no hard and fast rule in the determination of what
would be a fair amount of moral damages since each case must be governed by its own peculiar
circumstances.22 The testimony of petitioner about his physical suffering, mental anguish, fright,
serious anxiety, and moral shock resulting from the shooting incident 23 justify the award of moral
damages. However, moral damages are in the category of an award designed to compensate the
claimant for actual injury suffered and not to impose a penalty on the wrongdoer. The award is not
meant to enrich the complainant at the expense of the defendant, but to enable the injured party to
obtain means, diversion, or amusements that will serve to obviate the moral suffering he has
undergone. It is aimed at the restoration, within the limits of the possible, of the spiritual status quo
ante, and should be proportionate to the suffering inflicted. Trial courts must then guard against the
award of exorbitant damages; they should exercise balanced restrained and measured objectivity to
avoid suspicion that it was due to passion, prejudice, or corruption on the part of the trial court. 24 We
deem it just and reasonable under the circumstances to award petitioner moral damages in the
amount of P100,000.00.
Likewise, attorney's fees and litigation expenses in the amount of P50,000.00 as part of damages is
reasonable in view of Article 2208 of the Civil Code. 25 However, the award of exemplary damages is
deleted considering the absence of proof that respondents acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner.
We note that the trial court held respondent De Jesus solidarily liable with respondent FEU.
In Powton Conglomerate, Inc. v. Agcolicol,26 we held that:
[A] corporation is invested by law with a personality separate and distinct from those of the
persons composing it, such that, save for certain exceptions, corporate officers who entered
into contracts in behalf of the corporation cannot be held personally liable for the liabilities of
the latter. Personal liability of a corporate director, trustee or officer along (although not
necessarily) with the corporation may so validly attach, as a rule, only when - (1) he assents
to a patently unlawful act of the corporation, or when he is guilty of bad faith or gross
negligence in directing its affairs, or when there is a conflict of interest resulting in damages
to the corporation, its stockholders or other persons; (2) he consents to the issuance of
watered down stocks or who, having knowledge thereof, does not forthwith file with the
corporate secretary his written objection thereto; (3) he agrees to hold himself personally and
24
SORORITAS
solidarily liable with the corporation; or (4) he is made by a specific provision of law
personally answerable for his corporate action.27
None of the foregoing exceptions was established in the instant case; hence, respondent De Jesus
should not be held solidarily liable with respondent FEU.
Incidentally, although the main cause of action in the instant case is the breach of the school-student
contract, petitioner, in the alternative, also holds respondents vicariously liable under Article 2180 of
the Civil Code, which provides:
Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts
or omissions, but also for those of persons for whom one is responsible.
xxxx
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not
engaged in any business or industry.
xxxx
The responsibility treated of in this article shall cease when the persons herein mentioned
prove that they observed all the diligence of a good father of a family to prevent damage.
We agree with the findings of the Court of Appeals that respondents cannot be held liable for
damages under Art. 2180 of the Civil Code because respondents are not the employers of Rosete.
The latter was employed by Galaxy. The instructions issued by respondents' Security Consultant to
Galaxy and its security guards are ordinarily no more than requests commonly envisaged in the
contract for services entered into by a principal and a security agency. They cannot be construed as
the element of control as to treat respondents as the employers of Rosete. 28
As held in Mercury Drug Corporation v. Libunao:29
In Soliman, Jr. v. Tuazon,30 we held that where the security agency recruits, hires and
assigns the works of its watchmen or security guards to a client, the employer of such guards
or watchmen is such agency, and not the client, since the latter has no hand in selecting the
security guards. Thus, the duty to observe the diligence of a good father of a family cannot
be demanded from the said client:
[I]t is settled in our jurisdiction that where the security agency, as here, recruits,
hires and assigns the work of its watchmen or security guards, the agency is the
employer of such guards or watchmen. Liability for illegal or harmful acts committed
by the security guards attaches to the employer agency, and not to the clients or
25
SORORITAS
customers of such agency. As a general rule, a client or customer of a security

agency has no hand in selecting who among the pool of security guards or
watchmen employed by the agency shall be assigned to it; the duty to observe the
diligence of a good father of a family in the selection of the guards cannot, in the
ordinary course of events, be demanded from the client whose premises or property
are protected by the security guards.
xxxx
The fact that a client company may give instructions or directions to the security guards
assigned to it, does not, by itself, render the client responsible as an employer of the security
guards concerned and liable for their wrongful acts or omissions.31
We now come to respondents' Third Party Claim against Galaxy. In Firestone Tire and Rubber
Company of the Philippines v. Tempengko,32 we held that:
The third-party complaint is, therefore, a procedural device whereby a 'third party' who is
neither a party nor privy to the act or deed complained of by the plaintiff, may be brought into
the case with leave of court, by the defendant, who acts as third-party plaintiff to enforce
against such third-party defendant a right for contribution, indemnity, subrogation or any
other relief, in respect of the plaintiff's claim. The third-party complaint is actually
independent of and separate and distinct from the plaintiff's complaint. Were it not for this
provision of the Rules of Court, it would have to be filed independently and separately from
the original complaint by the defendant against the third-party. But the Rules permit
defendant to bring in a third-party defendant or so to speak, to litigate his separate cause of
action in respect of plaintiff's claim against a third-party in the original and principal case with
the object of avoiding circuitry of action and unnecessary proliferation of law suits and of
disposing expeditiously in one litigation the entire subject matter arising from one particular
set of facts.33
Respondents and Galaxy were able to litigate their respective claims and defenses in the course of
the trial of petitioner's complaint. Evidence duly supports the findings of the trial court that Galaxy is
negligent not only in the selection of its employees but also in their supervision. Indeed, no
administrative sanction was imposed against Rosete despite the shooting incident; moreover, he
was even allowed to go on leave of absence which led eventually to his disappearance. 34 Galaxy
also failed to monitor petitioner's condition or extend the necessary assistance, other than the
P5,000.00 initially given to petitioner. Galaxy and Imperial failed to make good their pledge to
reimburse petitioner's medical expenses.
For these acts of negligence and for having supplied respondent FEU with an unqualified security
guard, which resulted to the latter's breach of obligation to petitioner, it is proper to hold Galaxy liable
to respondent FEU for such damages equivalent to the above-mentioned amounts awarded to
petitioner.
26
SORORITAS
Unlike respondent De Jesus, we deem Imperial to be solidarily liable with Galaxy for being grossly
negligent in directing the affairs of the security agency. It was Imperial who assured petitioner that
his medical expenses will be shouldered by Galaxy but said representations were not fulfilled
because they presumed that petitioner and his family were no longer interested in filing a formal
complaint against them.35
WHEREFORE, the petition is GRANTED. The June 29, 2007 Decision of the Court of Appeals in
CA-G.R. CV No. 87050 nullifying the Decision of the trial court and dismissing the complaint as well
as the August 23, 2007 Resolution denying the Motion for Reconsideration are REVERSED and
SET ASIDE. The Decision of the Regional Trial Court of Manila, Branch 2, in Civil Case No. 9889483 finding respondent FEU liable for damages for breach of its obligation to provide students with
a safe and secure learning atmosphere, is AFFIRMED with the followingMODIFICATIONS:
a. respondent Far Eastern University (FEU) is ORDERED to pay petitioner actual damages in the
amount of P35,298.25, plus 6% interest per annum from the filing of the complaint until the finality of
this Decision. After this decision becomes final and executory, the applicable rate shall be twelve
percent (12%) per annum until its satisfaction;
b. respondent FEU is also ORDERED to pay petitioner temperate damages in the amount of
P20,000.00; moral damages in the amount of P100,000.00; and attorney's fees and litigation
expenses in the amount of P50,000.00;
c. the award of exemplary damages is DELETED.
The Complaint against respondent Edilberto C. De Jesus is DISMISSED. The counterclaims of
respondents are likewise DISMISSED.
Galaxy Development and Management Corporation (Galaxy) and its president, Mariano D. Imperial
are ORDEREDto jointly and severally pay respondent FEU damages equivalent to the abovementioned amounts awarded to petitioner.
Culpa Contractual
Culpa Aquiliana
1. Negligence is merely incidental to the

performance of an obligation already existing
because of a contract.
1. Negligence is direct, substantive,

independent
2. There is a pre-existing obligation (a

Contract, either express or implied)
2. No pre-existing obligation(except
of course the duty to be careful in all
Human actuations)
3. Proof needed preponderance of

Evidence.
3. Proof needed preponderance of

Evidence.
27
SORORITAS
4. defense of a good father of a family

In the selection and supervision of employees
Is not a proper complete defense
4. Defense of a good father of a

family is a proper and complete
defense
5. As long as it can be proved that there

Was a contract and that it was not carried
Out, it is presumed that he debtor is at fault,
And it is his duty to prove that there was no
Negligence in carrying out the terms of
Contract.
5. Ordinarilly, the victim has to prove

the negligence of the defendant.
This is because his action is based
on alleged negligence on the part of
the defendant.
III CONCEPT OF NEGLIGENCE
PNR vs CA
Before the Court is a petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure, as amended, seeking to annul and set aside the
Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 54906 which
reversed the Decision[2] of the Regional Trial Court (RTC) of Manila, Branch 28, in
Civil Case No. 92-61987.
The factual antecedents are as follows:
In the early afternoon of April 27, 1992, Jose Amores (Amores) was traversing the
railroad tracks in Kahilum II Street, Pandacan, Manila. Before crossing the railroad
track, he stopped for a while then proceeded accordingly.[3] Unfortunately, just as
Amores was at the intersection, a Philippine National Railways (PNR) train with
locomotive number T-517 turned up and collided with the car.[4]
At the time of the mishap, there was neither a signal nor a crossing bar at the
intersection to warn motorists of an approaching train. Aside from the railroad
track, the only visible warning sign at that time was the defective standard
signboard STOP, LOOK and LISTEN wherein the sign Listen was lacking while
that of Look was bent.[5] No whistle blow from the train was likewise heard before
it finally bumped the car of Amores. [6] After impact, the car was dragged about ten
28
SORORITAS
(10) meters beyond the center of the crossing. [7]Amores died as a consequence
thereof.
On July 22, 1992, the heirs of Amores, consisting of his surviving wife and six
children, herein respondents, filed a Complaint for Damages[8] against petitioners
PNR and Virgilio J. Borja (Borja), PNRs locomotive driver at the time of the
incident, before the RTC of Manila. The case was raffled to Branch 28 and was
docketed as Civil Case No. 92-61987.In their complaint, respondents averred that
the trains speedometer was defective, and that the petitioners negligence was the
proximate cause of the mishap for their failure to take precautions to prevent injury
to persons and property despite the dense population in the vicinity. They then
prayed for actual and moral damages, as well as attorneys fees.[9]
In their Answer,[10] the petitioners denied the allegations, stating that the train was
railroad-worthy and without any defect. According to them, the proximate cause of
the death of Amores was his own carelessness and negligence, and Amores
wantonly disregarded traffic rules and regulations in crossing the railroad tracks
and trying to beat the approaching train. They admitted that there was no crossing
bar at the site of the accident because it was merely a barangay road.[11] PNR
stressed that it exercised the diligence of a good father of a family in the selection
and supervision of the locomotive driver and train engineer, Borja, and that the
latter likewise used extraordinary diligence and caution to avoid the
accident. Petitioners further asserted that respondents had the last clear chance to
avoid the accident but recklessly failed to do so.
After trial on the merits, on August 22, 1996, the RTC rendered judgment in
favor of the petitioners, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered dismissing the complaint
of the plaintiffs and the defendants counterclaim.
The costs shall be halved and paid equally by the parties.
29
SORORITAS
The counsel for the defendants is hereby ordered to inform this court
who is the legal representative of the deceased defendant, Virgilio Borja,
within ten (10) days from receipt of a copy of this decision.
SO ORDERED.[12]
The RTC rationalized that the proximate cause of the collision was Amores fatal
misjudgment and the reckless course of action he took in crossing the railroad track
even after seeing or hearing the oncoming train.
On appeal, the CA reversed the RTC decision, as follows:
WHEREFORE, the assailed Decision of the Regional Trial Court of
Manila, Branch 28 is hereby REVERSED. The defendants PNR and the
estate of Virgilio J. Borja are jointly and severally liable to pay plaintiffs
the following:
1)
2)
The amount of P122,300.00 for the cost of damage to the car;

and,
The amount of P50,000 as moral damages.
For lack of official receipts for funeral expenses and specimen of

the last pay slip of the deceased, the claim for reimbursement of funeral
expenses and claim for payment of support is herebyDENIED for lack
of basis. Costs against Defendants.
SO ORDERED.[13]
In reversing the trial courts decision, the appellate court found the petitioners
negligent. The court based the petitioners negligence on the failure of PNR to
install a semaphore or at the very least, to post a flagman, considering that the
crossing is located in a thickly populated area. Moreover, the signboard Stop, Look
and Listen was found insufficient because of its defective condition as described
30
SORORITAS
above. Lastly, no negligence could be attributed to Amores as he exercised

reasonable diligence in crossing the railroad track.
Aggrieved by this reversal, the petitioners filed the present petition for
review on certiorari, raising the following grounds:
I
THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION IN RENDERING ITS DECISION REVERSING THE
DECISION OF THE REGIONAL TRIAL COURT OF MANILA
BRANCH 28, IN NOT TAKING INTO CONSIDERATION THE
PROVISION OF SECTION 42, R.A. 4136 OF THE LAND
TRANSPORTATION AND TRAFFIC CODE.
II
THE DECISION OF THE COURT OF APPEALS IS CONTRARY TO
THE EVIDENCE ON RECORD ADDUCED IN THE TRIAL ON THE
MERIT IN CIVIL CASE NO. 92-61987.[14]
The petitioners insist that Amores must have heard the trains whistle and heeded
the warning but, noting that the train was still a distance away and moving slowly,
he must have calculated that he could beat it to the other side of the track before
the train would arrive at the intersection. The petitioners likewise add that the train
was railroad-worthy and that its defective speedometer did not affect the trains
operation. Lastly, they insist that evidence showed sufficient warning signs
strategically installed at the crossing to alert both motorists and pedestrians.
Respondents, on the other hand, argue that the cause of the accident was petitioners
carelessness, imprudence and laxity in failing to provide a crossing bar and keeper
at the Kahilum II railway intersection. Considering that Kahilum II Street is in the
middle of a thickly populated squatters area, and many pedestrians cross the
railroad track, notwithstanding the fact that it is a public street and a main
31
SORORITAS
thoroughfare utilized in going to Herran Street, the presence of adequate warning

signals would have prevented the untimely death of Amores. Another crucial point
raised by the respondents is the manner in which Borja applied the brakes of the
train only when the locomotive was already very near Amores car, as admitted by
witness Querimit. Finally, respondents claim that Borjas failure to blow the
locomotives horn, pursuant to the usual practice of doing the same 100 meters
before reaching the Kahilum II crossing point is an earmark of recklessness on the
part of the petitioners.
The petition must fail.
The only issue to be resolved in the present case is whether the appellate
court was correct in ascribing negligence on the part of the petitioners. It was
ascertained beyond quandary that the proximate cause of the collision is the
negligence and imprudence of the petitioner PNR and its locomotive driver, Borja,
in operating the passenger train.
As the action is predicated on negligence, the relevant provision is Article
2176 of the New Civil Code, which states that:
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 was no pre-existing contractual relation between the
parties, is called quasi-delict and is governed by the provisions of this
chapter.
We have thoroughly reviewed the records of the case and we find no cogent
reason to reverse the appellate courts decision. Negligence has been defined as the
failure to observe for the protection of the interests of another person that degree of
care, precaution, and vigilance which the circumstances justly demand, whereby
such other person suffers injury.[15] Using the aforementioned philosophy, it may be
reliably concluded that there is no hard and fast rule whereby such degree of care
and vigilance is calibrated; it is dependent upon the circumstances in which a
32
SORORITAS
person finds himself. All that the law requires is that it is perpetually compelling
upon a person to use that care and diligence expected of sensible men under
comparable circumstances.[16]
We hold that the petitioners were negligent when the collision took place.
The transcript of stenographic notes reveals that the train was running at a fast
speed because notwithstanding the application of the ordinary and emergency
brakes, the train still dragged the car some distance away from the point of impact.
Evidence likewise unveils the inadequate precautions taken by petitioner PNR to
forewarn the public of the impending danger. Aside from not having any crossing
bar, no flagman or guard to man the intersection at all times was posted on the day
of the incident. A reliable signaling device in good condition, not just a dilapidated
Stop, Look and Listen signage because of many years of neglect, is needed to give
notice to the public. It is the responsibility of the railroad company to use
reasonable care to keep the signal devices in working order. Failure to do so would
be an indication of negligence.
As held in the case of Philippine National Railway v. Brunty,[17] it may
broadly be stated that railroad companies owe to the public a duty of exercising a
reasonable degree of care to avoid injury to persons and property at railroad
crossings, which duties pertain both to the operation of trains and to the
maintenance of the crossings. Moreover, every corporation constructing or
operating a railway shall make and construct at all points where such railway
crosses any public road, good, sufficient, and safe crossings, and erect at such
points, at sufficient elevation from such road as to admit a free passage of vehicles
of every kind, a sign with large and distinct letters placed thereon, to give notice of
the proximity of the railway, and warn persons of the necessity of looking out for
trains.[18] The failure of the PNR to put a cross bar, or signal light, flagman or
switchman, or semaphore is evidence of negligence and disregard of the safety of
the public, even if there is no law or ordinance requiring it, because public safety
demands that said device or equipment be installed.
33
SORORITAS
The petitioners insist that a train has a right-of-way in a railroad crossing

under the existing laws. They derive their theory from Section 42 (d), Article III of
R.A. 4136, otherwise known as the Land Transportation and Traffic Code, which
states that:
The driver of a vehicle upon a highway shall bring to a full stop
such vehicle before traversing any through highway or railroad crossing:
Provided, That when it is apparent that no hazard exists, the vehicle may
be slowed down to five miles per hour instead of bringing it to a full
stop.
They claim that motorists are enjoined by law to stop, look and listen before
crossing railroad tracks and that a heavier responsibility rests upon the motorists in
avoiding accidents at level crossings.
It is true that one driving an automobile must use his faculties of seeing and
hearing when nearing a railroad crossing. However, the obligation to bring to a full
stop vehicles moving in public highways before traversing any through street only
accrues from the time the said through street or crossing is so designated and signposted. From the records of the case, it can be inferred that Amores exercised all
the necessary precautions required of him as to avoid injury to himself and to
others. The witnesses testimonies showed that Amores slackened his speed, made a
full stop, and then proceeded to cross the tracks when he saw that there was no
impending danger to his life. Under these circumstances, we are convinced that
Amores did everything, with absolute care and caution, to avoid the collision.
It is settled that every person or motorist crossing a railroad track should use
ordinary prudence and alertness to determine the proximity of a train before
attempting to cross. We are persuaded that the circumstances were beyond the
control of Amores for no person would sacrifice his precious life if he had the
slightest opportunity to evade the catastrophe. Besides, the authority in this
jurisdiction is that the failure of a railroad company to install a semaphore or at the
34
SORORITAS
very least, to post a flagman or watchman to warn the public of the passing train
amounts to negligence.[19]
In view of the foregoing, We will now discuss the liability of petitioner
PNR. Article 2180[20] of the New Civil Code discusses the liability of the employer
once negligence or fault on the part of the employee has been established. The
employer is actually liable on the assumption of juris tantum that the
employer failed to exercise diligentissimi patris families in
35
SORORITAS
the selection and supervision of its employees. The liability is primary and can
only be negated by showing due diligence in the selection and supervision of the
employee, a factual matter that has not been demonstrated. [21] Even the existence of
hiring procedures and supervisory employees cannot be incidentally invoked to
overturn the presumption of negligence on the part of the employer.[22]
WHEREFORE, the petition is DENIED. The Decision of the Court of
Appeals dated March 31, 2003 in CA-G.R. CV No. 54906 is hereby AFFIRMED.
36
SORORITAS
Keppel Cebu Shipyard vs. Pioneer Insurance and Surety

September 25, 2009
Facts: KCSI and WG&A Jebsens Shipmanagement, Inc. (WG&A) executed a Shiprepair
Agreement wherein KCSI would renovate and reconstruct WG&As M/V Superferry 3 using its
dry docking facilities pursuant to its restrictive safety and security rules and regulations. Prior to
the execution of the Shiprepair Agreement, Superferry 3 was already insured by WG&A with
Pioneer for US$8,472,581.78. The Ship repair Agreement provides, among others, for the
following terms:
(1) that the owner shall inform its insurer and shall include Keppel Cebu Shipyard as a coassured in its insurance policy;
(2) that the owner shall waive its right to claim for any loss of profit or loss of use or damages
consequential on such loss of use resulting from the delay in the redelivery of the above vessel;
(3) that the owner shall indemnify and hold Keppel Cebu Shipyard harmless from any or all
claims, damages, or liabilities arising from death or bodily injuries to Owners workers, or
damages to the vessel or other property however caused.
In the course of its repair, M/V Superferry 3 was gutted by fire. Claiming that the extent of the
damage was pervasive, WG&A declared the vessels damage as a total constructive loss and,
hence, filed an insurance claim with Pioneer. Pioneer paid the insurance claim in the amount of
US$8,472,581.78. WG&A, in turn, executed a Loss and Subrogation Receipt in favor of
Pioneer. Pioneer then tried to collect from KCSI, butthe latter denied any responsibility for the
loss of the subject vessel despite repeated demands. Hence, Pioneer, filed a Request for
Arbitration before the Construction Industry Arbitration Commission (CIAC) praying for the
payment of the amount paid to WG&A, the expenses of the arbitration (P500 million), and
damages. It further prayed that Clauses 1 and 2 on the unsigned page 1 of the Ship repair
Agreement as well as the hardly legible Clauses 20 and 22 (a) and other similar clauses printed
in very fine print on the unsigned dorsal page thereof, be all declared illegal and void ab initio.
KCSI and WG&A reached an amicable settlement, leading to the dismissal of the claim of
WG&A against KCSI and the arbitration to proceed with Pioneer as the remaining claimant.
Pioneer alleges that it is the real party in interest and that Keppel had custody of and control
over the M/V Superferry 3 while said vessel was in Respondent Keppels premises. It likewise
alleged that
the Vessels Safety Manual cannot be relied upon as proof of the Masters
continuing control over the vessel; Yard is liable under the Doctrine of Res Ipsa Loquitur.
Moreover , the liability of Respondent does not arise merely from the application of the Doctrine
of Res Ipsa Loquitur, but from its negligence in this case. It futher allEged that the shipowner
had no legal duty to apply for a hotworks permit since it was not required by the yard, and the
owners hotworks were conducted by welders who remained employees of the yard. In
supplying welders and equipment as per The Work Order Dated 26 January 2000, the Yard did
so at its own risk, and acted as a Less Than Prudent Ship Repairer.
KCI on the other hand allged:
1. that pioneer as claimant has no standing to file the Request for Arbitration and the Tribunal
has no jurisdiction over the case.
2. The Ship [R]epair Agreement was not imposed upon the Vessel. The Vessel knowingly and
37
SORORITAS
voluntarily accepted that agreement. Moreover, there are no signing or other formal defects
that can invalidate the agreement.
3. The proximate cause of the fire and damage to the Vessel was not any negligence committed
by Angelino Sevillejo in cutting the bulkhead door or any other shortcoming by the Yard. On
the contrary, the proximate cause of the fire was Dr. Jonigas and the Vessels deliberate
decision to have Angelino Sevillejo undertake cutting work in inherently dangerous
conditions created by them.
4. Even assuming that Angelino Sevillejo cut the bulkhead door close to the deck floor, and
that this circumstance rather than the extremely hazardous conditions created by Dr. Joniga
and the Vessel for that activity caused the fire, the Yard may still not be held liable for the
resulting damage.
5. Assuming that the Yard is liable, it cannot be compelled to pay the full amount of P360
million paid by the Claimant as subrogee, for an amount greater than that which the Vessel
could have recovered, even if the Claimant may have paid a higher amount under its
policies. In turn, the right of the Vessel to recover is limited to actual damage to the MV
Superferry 3, at the time of the fire.
CIA declared both WG&A and KCSI guilty of negligence. The Court of appeals, in its amended
decision ordered the Yard to pay Pioneer P25 Million, without legal interest, within 15 days from
the finality of the decision.
ISSUES:
1. To whom may negligence over the fire that broke out on board M/V Superferry 3 be
imputed?
2. Is subrogation proper? If proper, to what extent can subrogation be made?
Held:
1. KCI should be liable. Undeniably, the immediate cause of the fire was the hot work done by
Angelino Sevillejo (Sevillejo) on the accommodation area of the vessel, specifically on Deck A.
The fire broke out shortly after 10:25 and an alarm was raised (Exh. 1-Ms. Aini Ling, p. 20).
Angelino Sevillejo tried to put out the fire by pouring the contents of a five-liter drinking water
container on it and as he did so, smoke came up from under Deck A. He got another container
of water which he also poured whence the smoke was coming. In the meantime, other workers
in the immediate vicinity tried to fight the fire by using fire extinguishers and buckets of water.
But because the fire was inside the ceiling void, it was extremely difficult to contain or
extinguish; and it spread rapidly because it was no possible to direct water jets or the fire
extinguishers into the space at the source. Fighting the fire was extremely difficult because the
life jackets and the construction materials of the Deck B ceiling were combustible and permitted
the fire to spread within the ceiling void. From there, the fire dropped into the Deck B
accommodation areas at various locations, where there were combustible materials.
Respondent points to cans of paint and thinner, in addition to the plywood partitions and foam
mattresses on deck B.
Indeed, KCSI was the employer of Sevillejopaying his salaries; retaining the power and the
right to discharge or substitute him with another welder; providing him and the other welders
with its equipment; giving him and the other welders marching orders to work on the vessel; and
38
SORORITAS
monitoring and keeping track of his and the other welders activities on board, in view of the
delicate nature of their work. Thus, as such employee, aware of KCSIs Safety Regulations on
Vessels Afloat/Dry, which specifically provides that (n)o hotwork (welding/cutting works) shall
be done on board [the] vessel without [a] Safety Permit from KCSI Safety Section,
it was incumbent upon Sevillejo to obtain the required hot work safety permit before starting the
work he did, including that done on Deck A where the fire started. In this light, therefore,
Sevillejo, being one of the specially trained welders specifically authorized by KCSI to do the hot
works on M/V Superferry 3 to the exclusion of other workers, failed to comply with the strict
safety standards of KCSI, not only because he worked without the required permit, fire watch,
fire buckets, and extinguishers, but also because he failed to undertake other precautionary
measures for preventing the fire. For instance, he could have, at the very least, ensured that
whatever combustible material may have been in the vicinity would be protected from the sparks
caused by the welding torch. He could have easily removed the life jackets from the ceiling
void, as well as the foam mattresses, and covered any holes where the sparks may enter.
There is negligence when an act is done without exercising the competence that a reasonable
person in the position of the actor would recognize as necessary to prevent an
unreasonable risk of harm to another. Those who undertake any work calling for special
skills are required to exercise reasonable care in what they do. Verily, there is an obligation all
persons have to take due care which, under ordinary circumstances of the case, a
reasonable and prudent man would take. The omission of that care constitutes
negligence. Generally, the degree of care required is graduated according to the danger a
person or property may be subjected to, arising from the activity that the actor pursues or the
instrumentality that he uses. The greater the danger, the greater the degree of care required.
Extraordinary risk demands extraordinary care. Similarly, the more imminent the danger, the
higher degree of care warranted.
KCSI failed to prove that it exercised the necessary diligence incumbent upon it to rebut the
legal presumption of its negligence in supervising Sevillejo. Consequently, it is responsible for
the damages caused by the negligent act of its employee, and its liability is primary and solidary.
All that is needed is proof that the employee has, by his negligence, caused damage to another
in order to make the employer responsible for the tortuous act of the former.
1. From the foregoing disquisition, there is ample proof of the employeesnegligence.
2. In marine insurance, a constructive total loss occurs under any of the conditions set forth in
Section 139 of the Insurance Code, which provides
Sec. 139. A person insured by a contract of marine insurance may abandon the thing
insured, or any particular portion hereof separately valued by the policy, or
otherwise separately insured, and recover for a total loss thereof, when the cause of the loss is
a peril insured against:
(a)
If more than three-fourths thereof in value is actually lost, or would have to be
expended to recover it from the peril;
(b)
If it is injured to such an extent as to reduce its value more than three-fourths;
x x x.
39
SORORITAS
It appears, however, that in the execution of the insurance policies over M/V Superferry
3, WG&A and Pioneer incorporated by reference the American Institute Hull Clauses 2/6/77,
the Total Loss Provision of which reads
Total Loss
In ascertaining whether the Vessel is a constructive Total Loss the Agreed Value shall
be taken as the repaired value and nothing in respect of the damaged or break-up value of the
Vessel or wreck shall be taken into account.
There shall be no recovery for a constructive Total Loss hereunder unless the expense
of recovering and repairing the Vessel would exceed the Agreed Value in policies on
Hull
and Machinery. In making this determination, only expenses incurred or to be incurred by
reason of a single accident or a sequence of damages arising from the same accident shall be
taken into account, but expenses incurred prior to tender of abandonment shall not be
considered if such are to be claimed separately under the Sue and Labor clause. x x x.
In the course of the arbitration proceedings, Pioneer adduced in evidence the estimates made
by three (3) disinterested and qualified shipyards for the cost of the repair of the
vessel, specifically: (a) P296,256,717.00, based on the Philippine currency equivalent of the
quotation dated April 17, 2000 turned in by Tsuneishi Heavy Industries (Cebu) Inc.; (b)
P309,780,384.15, based on the Philippine currency equivalent of the quotation of Sembawang
Shipyard Pte. Ltd., Singapore; and (c) P301,839,974.00, based on the Philippine currency
equivalent of the quotation of Singapore Technologies Marine Ltd. All the estimates showed
that the repair expense would exceed P270,000,000.00, the amount equivalent to of the
vessels insured value of P360,000,000.00. Thus, WG&A opted to abandon M/V Superferry 3
and claimed from Pioneer the full amount of the policies. Pioneer paid WG&As claim,
and now demands from KCSI the full amount of P360,000,000.00, by virtue of
subrogation.
KCSI denies the liability because, aside from its claim that it cannot be held culpable for
negligence resulting in the destructive fire, there was no constructive total loss, as the amount of
damage was only US$3,800,000.00 or P170,611,260.00, the amount of repair expense quoted
by Simpson, Spence & Young.
In the face of this apparent conflict, we hold that Section 139 of the Insurance Code should
govern, because (1) Philippine law is deemed incorporated in every locally executed contract;
and (2) the marine insurance policies in question expressly provided for that the insurance is
subject to English jurisdiction, except in the event that loss or losses are payable in the
Philippines, in which case if the said laws and customs of England shall be in conflict with the
laws of the Republic of the Philippines, then the laws of the Republic of the Philippines shall
govern.
Considering the extent of the damage, WG&A opted to abandon the ship and claimed the value
of its policies. Pioneer, finding the claim compensable, paid the claim, with WG&A issuing a
Loss and Subrogation Receipt evidencing receipt of the payment of the insurance proceeds
40
SORORITAS
from Pioneer. On this note, we find as unacceptable the claim of KCSI that there was no ample
proof of payment simply because the person who signed the Receipt appeared to be an
employee of Aboitiz Shipping Corporation.
The Loss and Subrogation
Receipt issued by WG&A to Pioneer is the best evidence of payment of the insurance proceeds
to the former, and no controverting evidence was presented by KCSI to rebut the presumed
authority of the signatory to receive such payment.
Payment by the insurer to the insured operates as an equitable assignment to the insurer of all
the remedies that the insured may have against the third party whose negligence or wrongful
act caused the loss. The right of subrogation is not dependent upon, nor does it grow out of,
any privity of contract. It accrues simply upon payment by the insurance company of the
insurance claim. The doctrine of subrogation has its roots in equity. It is designed to promote
and to accomplish justice; and is the mode that equity adopts to compel the ultimate payment of
a debt by one who, in justice, equity, and good conscience, ought to pay.
Clauses 20 and 22(a) of the Shiprepair Agreement are without factual and legal foundation.
They are unfair and inequitable under the premises. It was established during arbitration that
WG&A did not voluntarily and expressly agree to these provisions. Engr. Elvin F. Bello, WG&As
fleet manager, testified that he did not sign the fine-print portion of the Shiprepair Agreement
where Clauses 20 and 22(a) were found, because he did not want WG&A to be bound by them.
However, considering that it was only KCSI that had shipyard facilities large enough to
accommodate the dry docking and repair of big vessels owned by WG&A, such as M/V
Superferry 3, in Cebu, he had to sign the front portion of the Ship repair Agreement; otherwise,
the vessel would not be accepted for dry docking.
Indeed, the assailed clauses amount to a contract of adhesion imposed on WG&A on a take-itor-leave-it basis. A contract of adhesion is so-called because its terms are prepared by only
one party, while the other party merely affixes his signature signifying his adhesion thereto.
Although not invalid, per se, a contract of adhesion is void when the weaker party is imposed
upon in dealing with the dominant bargaining party, and its option is reduced to the alternative of
taking it or leaving it, completely depriving such party of the opportunity to bargain on equal
footing.
Clause 20 is also a void and ineffectual waiver of the right of WG&A to be compensated for the
full insured value of the vessel or, at the very least, for its actual market value. There was
clearly no intention on the part of WG&A to relinquish such right. It is an elementary rule that a
waiver must be positively proved, since a waiver by implication is not normally countenanced.
The norm is that a waiver must not only be voluntary, but must have been made knowingly,
intelligently, and with sufficient awareness of the relevant circumstances and likely
consequences. There must be persuasive evidence to show an actual intention to relinquish
the right.
This has not been demonstrated in this case.
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SORORITAS
Undeniably, the hull and machinery insurance procured by WG&A from Pioneer named only the
former as the assured. There was no manifest intention on the part of WG&A to constitute KCSI
as a co-assured under the policies. To have deemed KCSI as a co-assured under the policies
would have had the effect of nullifying any claim of WG&A from Pioneer for any loss or damage
caused by the negligence of KCSI. No ship owner would agree to make a ship repairer a coassured under such insurance policy. Otherwise, any claim for loss or damage under the policy
would be rendered nugatory. WG&A could not have intended such a result.
a) Test of Determining Negligence
Gaid vs People
Before the Court is a petition for review on certiorari 1 assailing the 12 July 2005 Decision2 of the
Court of Appeals and its subsequent Resolution3 denying petitioners motion for reconsideration.
Petitioner Norman A. Gaid was charged with the crime of reckless imprudence resulting in
homicide in an information which reads as follow:
That on or about 12:00 high noon of October 25, 2001, infront of the Laguindingan National
High School, Poblacion, Laguindingan, Misamis Oriental, Philippines and within the jurisdiction
of this Honorable Court, the said accused mentioned above while driving a passengers jeepney
color white bearing plate no. KVG-771 owned by barangay captain Levy Etom has no
precautionary measure to preempt the accident, did then and there willfully, unlawfully and
feloniously ran [sic] over Michael Dayata resulting of [sic] his untimely death as pronounced by
the attending physician of Northern Mindanao Medical Center Hospital, Cagayan de Oro City.
CONTRARY TO LAW.4
Petitioner entered a not guilty plea. Thereafter, trial ensued.
The antecedent facts are undisputed.
At around 12:00 noon on 25 October 2001, petitioner was driving his passenger jeepney along a
two-lane road where the Laguindingan National High School is located toward the direction of
Moog in Misamis Oriental. His jeepney was filled to seating capacity. 5 At the time several
students were coming out of the school premises. 6 Meanwhile, a fourteen year-old student,
Michael Dayata (Dayata), was seen by eyewitness Artman Bongolto (Bongolto) sitting near a
store on the left side of the road. From where he was at the left side of the road, Dayata raised his
left hand to flag down petitioners jeepney7 which was traveling on the right lane of the road. 8
However, neither did petitioner nor the conductor, Dennis Mellalos (Mellalos), saw anybody
flagging down the jeepney to ride at that point.9
42
SORORITAS
The next thing Bongalto saw, Dayatas feet was pinned to the rear wheel of the jeepney, after
which, he laid flat on the ground behind the jeepney.10 Another prosecution witness, Usaffe Actub
(Actub), who was also situated on the left side of the street but directly in front of the school
gate, heard "a strong impact coming from the jeep sounding as if the driver forced to accelerate
in order to hurdle an obstacle."11 Dayata was then seen lying on the ground 12 and caught in
between the rear tires.13 Petitioner felt that the left rear tire of the jeepney had bounced and the
vehicle tilted to the right side.14
Mellalos heard a shout that a boy was run over, prompting him to jump off the jeepney to help
the victim. Petitioner stopped and saw Mellalos carrying the body of the victim. 15 Mellalos
loaded the victim on a motorcycle and brought him to the hospital. Dayata was first brought to
the Laguindingan Health Center, but it was closed. Mellalos then proceeded to the El Salvador
Hospital. Upon advice of its doctors, however, Dayata was brought to the Northern Mindanao
Medical Center where he was pronounced dead on arrival.16
Dr. Tammy Uy issued an autopsy report stating cranio-cerebral injuries as the cause of death. 17
She testified that the head injuries of Dayata could have been caused by having run over by the
jeepney.18
The Municipal Circuit Trial Court (MCTC) of Laguindingan19 found petitioner guilty beyond
reasonable doubt of the crime charged. The lower court held petitioner negligent in his driving
considering that the victim was dragged to a distance of 5.70 meters from the point of impact. He
was also scored for "not stopping his vehicle after noticing that the jeepneys left rear tire jolted
causing the vehicle to tilt towards the right."20 On appeal, the Regional Trial Court (RTC) 21
affirmed in toto the decision of the MCTC.
The Court of Appeals affirmed the trial courts judgment with modification in that it found
petitioner guilty only of simple negligence resulting in homicide.
1avvphi1.zw+
The Court of Appeals exonerated petitioner from the charge of reckless imprudence resulting to
homicide on the ground that he was not driving recklessly at the time of the accident. However,
the appellate court still found him to be negligent when he failed "to promptly stop his vehicle to
check what caused the sudden jotting of its rear tire."22
In its 6 February 2006 Resolution, the Court of Appeals denied petitioners motion for
reconsideration.23
Hence, the instant petition.
43
SORORITAS
Petitioner submits that the Court of Appeals erred in finding that "there is (sic) absolutely lack of
precaution on the part of the petitioner when he continued even after he had noticed that the left
rear tire and the jeep tilted to its right side."24 Petitioner stressed that he, in fact, stopped his jeep
when its left rear tire bounced and upon hearing that somebody had been ran over.
Moreover, petitioner asserts that the Court of Appeals committed a grave abuse of discretion in
convicting him of the offense of simple negligence resulting in homicide. Assuming arguendo
that he failed to promptly stop his vehicle, petitioner maintains that no prudent man placed in
the same situation could have foreseen the vehicular accident or could have stopped his
vehicle in time when its left rear tire bounced due to the following reasons: (1) the victim was
only a trespasser; (2) petitioners attention was focused on the road and the students outside the
schools gate; and (3) the jeepney was fully loaded with passengers and cargoes and it was
impossible for the petitioner to promptly stop his vehicle.25
The Office of the Solicitor-General (OSG) maintained that petitioner was negligent when he
continued to run towards the direction of Moog, Laguindingan, dragging the victim a few meters
from the point of impact, despite hearing that a child had been run over.26
The presence or absence of negligence on the part of petitioner is determined by the operative
events leading to the death of Dayata which actually comprised of two phases or stages. The first
stage began when Dayata flagged down the jeepney while positioned on the left side of the road
and ended when he was run over by the jeepney. The second stage covered the span between the
moment immediately after the victim was run over and the point when petitioner put the jeepney
to a halt.
During the first stage, petitioner was not shown to be negligent.
Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from
which material damage results by reason of an inexcusable lack of precaution on the part of the
person performing or failing to perform such act.27
In Manzanares v. People,28 this Court convicted petitioner of the crime of reckless imprudence
resulting in multiple homicide and serious physical injuries when he was found driving the Isuzu
truck very fast before it smashed into a jeepney.29 Likewise, in Pangonorom v. People, 30 a public
utility driver, who was driving very fast, failed to slow down and hit a swerving car. He was
found negligent by this Court.
44
SORORITAS
In the instant case, petitioner was driving slowly at the time of the accident, as testified to by two
eyewitnesses. Prosecution witness Actub affirmed this fact on cross-examination, thus:
ATTY. MACUA:
(to the witness)
Q Mr. Witness, when the passenger jeepney passed by the gate of the Laguindingan
National High School, is it running slowly, am I correct?
A Yes, he was running slowly.31
The slow pace of the jeepney was seconded by Mellalos:
Q You testified that you heard somebody outside from the vehicle shouting that a boy was
ran over, am I correct?
A Yes, Sir.
Q Now, before you heard that shouting, did you observe any motion from the vehicle?
A The jeep was moving slowly and I noticed that there was something that [sic] the jeep a
little bit bounced up as if a hump thats the time I heard a shout from outside.32
Petitioner stated that he was driving at no more than 15 kilometers per hour.33
It appears from the evidence Dayata came from the left side of the street. Petitioner, who was
driving the jeepney on the right lane, did not see the victim flag him down. He also failed to see
him go near the jeepney at the left side. Understandably, petitioner was focused on the road
ahead. In Dayatas haste to board the jeep which was then running, his feet somehow got pinned
to the left rear tire, as narrated by Bongolto. Actub only saw Dayata after he heard a strong
impact coming from the jeep.
With the foregoing facts, petitioner can not be held liable during the first stage. Specifically, he
cannot be held liable for reckless imprudence resulting in homicide, as found by the trial court.
The proximate cause of the accident and the death of the victim was definitely his own
negligence in trying to catch up with the moving jeepney to get a ride.
45
SORORITAS
In the instant case, petitioner had exercised extreme precaution as he drove slowly upon reaching
the vicinity of the school. He cannot be faulted for not having seen the victim who came from
behind on the left side.
However, the Court of Appeals found petitioner guilty of simple negligence resulting in
homicide for failing to stop driving at the time when he noticed the bouncing of his vehicle.
Verily, the appellate court was referring to the second stage of the incident.
Negligence has been defined as the failure to observe for the protection of the interests of another
person that degree of care, precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury.34
The elements of simple negligence: are (1) that there is lack of precaution on the part of the
offender; and (2) that the damage impending to be caused is not immediate or the danger is not
clearly manifest.35
The standard test in determining whether a person is negligent in doing an act whereby injury or
damage results to the person or property of another is this: could a prudent man, in the position
of the person to whom negligence is attributed, foresee harm to the person injured as a
reasonable consequence of the course actually pursued? If so, the law imposes a duty on the
actor to refrain from that course or to take precautions to guard against its mischievous results,
and the failure to do so constitutes negligence. Reasonable foresight of harm, followed by the
ignoring of the admonition born of this provision, is always necessary before negligence can be
held to exist.36
In Philippine National Construction Corporation v. Court of Appeals, 37 the petitioner was the
franchisee that operates and maintains the toll facilities in the North and South Luzon Toll
Expressways. It failed to exercise the requisite diligence in maintaining the NLEX safe for
motorists. The lighted cans and lane dividers on the highway were removed even as flattened
sugarcanes lay scattered on the ground. The highway was still wet from the juice and sap of the
flattened sugarcanes. The petitioner should have foreseen that the wet condition of the highway
would endanger motorists passing by at night or in the wee hours of the morning. 38 Consequently,
it was held liable for damages.
In an American case, Hernandez v. Lukas, 39 a motorist traveling within the speed limit and did all
was possible to avoid striking a child who was then six years old only. The place of the incident
was a neighborhood where children were playing in the parkways on prior occasions. The court
ruled that it must be still proven that the driver did not exercise due care. The evidence showed
46
SORORITAS
that the driver was proceeding in lawful manner within the speed limit when the child ran into
the street and was struck by the drivers vehicle. Clearly, this was an emergency situation thrust
upon the driver too suddenly to avoid.
In this case, the courts below zeroed in on the fact that petitioner did not stop the jeepney when
he felt the bouncing of his vehicle, a circumstance which the appellate court equates with
negligence. Petitioner contends that he did not immediately stop because he did not see anybody
go near his vehicle at the time of the incident.40
Assuming arguendo that petitioner had been negligent, it must be shown that his negligence was
the proximate cause of the accident. Proximate cause is defined as that which, in the natural and
continuous sequence, unbroken by any efficient, intervening cause, produces the injury, and
without which the result would not have occurred.41 In order to establish a motorist's liability for
the negligent operation of a vehicle, it must be shown that there was a direct causal connection
between such negligence and the injuries or damages complained of . Thus, negligence that is not
a substantial contributing factor in the causation of the accident is not the proximate cause of an
injury.42
The head injuries sustained by Dayata at the point of impact proved to be the immediate cause
of his death, as indicated in the post-mortem findings.43 His skull was crushed as a result of the
accident. Had petitioner immediately stopped the jeepney, it would still not have saved the life of
the victim as the injuries he suffered were fatal.
The evidence on record do not show that the jeepney dragged the victim after he was hit and run
over by the jeepney. Quite the contrary, the evidence discloses that the victim was not dragged at
all. In fact, it is the other way around. Bongolto narrated that after the impact, he saw Dayata left
behind the jeepney.44 Actub saw Dayata in a prone position and bleeding within seconds after
impact.45 Right after the impact, Mellalos immediately jumped out of the jeepney and saw the
victim lying on the ground.46 The distance of 5.70 meters is the length of space between the spot
where the victim fell to the ground and the spot where the jeepney stopped as observed by the
trial judge during the ocular inspection at the scene of the accident.47
Moreover, mere suspicions and speculations that the victim could have lived had petitioner
stopped can never be the basis of a conviction in a criminal case. 48 The Court must be satisfied
that the guilt of the accused had been proven beyond reasonable doubt. 49 Conviction must rest on
nothing less than a moral certainty of the guilt of the accused. The overriding consideration is not
whether the court doubts the innocence of the accused but whether it entertains doubt as to his
guilt.50
47
SORORITAS
Clearly then, the prosecution was not able to establish that the proximate cause of the victims
death was petitioners alleged negligence, if at all, even during the second stage of the incident.
If at all again, petitioners failure to render assistance to the victim would constitute
abandonment of ones victim punishable under Article 275 of the Revised Penal Code. However,
the omission is not covered by the information. Thus, to hold petitioner criminally liable under
the provision would be tantamount to a denial of due process.
Therefore, petitioner must be acquitted at least on reasonable doubt. The award of damages must
also be deleted pursuant to Article 2179 of the Civil Code which states that when the plaintiffs
own negligence was the immediate and proximate cause of his injury, he cannot recover
damages.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated 12 July
2005 is REVERSED and SET ASIDE. Petitioner Norman A. Gaid is ACQUITTED of the crime
of Simple Negligence Resulting in Homicide as found by the Court of Appeals and of the charge
of Reckless Imprudence Resulting in Homicide in Criminal Case No. 1937 of the MCTC of
Laguindingan, Misamis Oriental.
48
SORORITAS

Torts and Damages

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TORTS AND DAMAGES

II CONCEPT OF QUASI DELICT

FGU INSURANCE CORPORATION, petitioner, vs., COURT OF APPEALS, FILCAR

B. Distinction between Culpa Aquiliana and Delict

Distinctions between Crimes and Culpa Aquiliana:

customers of such agency. As a general rule, a client or customer of a security

1. Negligence is merely incidental to the

1. Negligence is direct, substantive,

2. There is a pre-existing obligation (a

3. Proof needed preponderance of

3. Proof needed preponderance of

4. defense of a good father of a family

4. Defense of a good father of a

5. As long as it can be proved that there

5. Ordinarilly, the victim has to prove

III CONCEPT OF NEGLIGENCE

The amount of P122,300.00 for the cost of damage to the car;

For lack of official receipts for funeral expenses and specimen of

above. Lastly, no negligence could be attributed to Amores as he exercised

thoroughfare utilized in going to Herran Street, the presence of adequate warning

The petitioners insist that a train has a right-of-way in a railroad crossing

Keppel Cebu Shipyard vs. Pioneer Insurance and Surety

If it is injured to such an extent as to reduce its value more than three-fourths;

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