TORTS Illustration: A bus company has instructions
to its employees to drive safely and as such
FUNCTIONS OF TORT LAW:
 COMPENSATION
 CIVIL REDRESS
 TO SHAPE SOCIETAL CONDUCT
Case: PHILIPP MORRIS USA vs. WILLIAMS
This is a case of a widow filing a case
against Philipp Morris to indemnify the
family for the death of her husband who
died of lung cancer. They were able to
establish proximate causation that lung
cancer was in fact caused by the
husband’s heavy smoking. The argument
of Philipp Morris is that they cannot be
faulted since it was the husband’s decision
to smoke. He could have quit anytime.
Since he continued, he bears the
consequence.
The widow argued that even if her
husband wanted to quit smoking, Philipp
Morris made their cigarettes addictive that
he cannot anymore stop smoking and
there was no more voluntariness on his
part. Thus, Philipp Morris should be liable.
The Federal Court held that Philipp Morris
was indeed liable and slapped it with a
hefty amount of damages.
Case: McDONALDS
A girl placed the coffee she bought in the
drive thru service of McDonalds between
her thighs. The coffee however spilled and
the customer suffered burns. The argument
of Mcdo was it was the girl’s fault for
having placed the coffee there.
McDonalds was held liable. Because of this
case, they have now regulated the
temperature of their drive thru coffee in
such a way that even it spills, the customer
will not suffer burns.
1. RISK OR LOSS DISTRIBUTION
TORTS AND DAMAGES | DEAN JOAN LARGO | MIDTERMS | A.Y. 2017-2018
pegs the maximum speed to be driven by
its drivers at 60 kph. A driver openly
disobeyed the instructions resulting in the
death of several passengers. Even with the
presence of such specific instructions to
observe a certain maximum speed, the
common carrier is still responsible. That is a
measure of risk/loss distribution. As
between the people who did not have a
hand in the hiring of the reckless driver and
the one who had a hand on the hiring of
such driver, the risk/loss should be
distributed heavily against the employer.
2. AS A MEASURE OF OPTIMAL
DETERRENCE
COMMON LAW SYSTEM vs. CIVIL LAW
SYSTEM
In a Civil Law system, the basis is the
provisions of law.
On the other hand, in a Common Law
system, the basis is not only the law but
principles of justice, equity, customs, and
the like. The judge can make decisions
based on the arguments of the parties,
even when not supported by law.
PHILIPPINE SETTING
It is not enough that there is damage,
there must be a legal basis for the claim on
compensation for that damage. For there
to be damage, as contemplated by the
law, there must be injury, which is damage
plus a provision of the law creating a
legally demandable right. Hypothetical
questions are not allowed. In the absence
of legislation, there is no recourse. In our
jurisdiction, however, there are snippets of
equity jurisprudence. Judges sometimes
rely on customs, traditions, and the like.
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 FAULT vs. NEGLIGENCE
Illustration: Non-legally demandable right –
Beauty pageant contestant who is Case: CHILD LEARNING CENTER VS
aggrieved cannot enforce her claim that TAGARIO
she should have won in the courts. There is FACTS: One normal school day, a fourth
no enforceable action. grade student decided to use the boys’
comfort room on the third floor to answer
QUASI-DELICT
the call of nature. Unfortunately, he got
locked inside the bathroom due to a
Art. 2176. Whoever by act or omission
defective doorknob and could not get
causes damage to another, there being
out. Panicking, the scared boy yelled
fault or negligence, is obliged to pay for
several times for help and even banged
the damage done. Such fault or
and kicked the door, all to no avail.
negligence, if there is no pre-existing
Consequently, he decided to open the
contractual relation between the parties, is
window to call for help but in the process
called a quasi-delict and is governed by
of opening the window, he “went right
the provisions of this Chapter. (1902a)
through and fell down three stories.” The
boy was rushed to the hospital where he
ELEMENTS OF QUASI-DELICT
was confined and given medical
1) DAMAGES SUFFERED BY THE
treatment for serious multiple physical
PLAINTIFF;
injuries.
2) FAULT OR NEGLIGENCE OF THE
DEFENDANT, OR SOME OTHER RULING: The Supreme Court made the
PERSON FOR WHOSE ACT HE MUST following pronouncement: In every tort
RESPOND; AND case filed under Article 2176 of the Civil
3) THE CONNECTION OF CAUSE AND Code, plaintiff has to prove by a
EFFECT BETWEEN THE FAULT OR preponderance of evidence: (1) the
NEGLIGENCE AND THE DAMAGES damages suffered by the plaintiff; (2) the
INCURRED. fault or negligence of the defendant or
some other person for whose act he must
The defining element that makes it quasi- respond; and (3) the connection of cause
delict is the presence of fault or and effect between the fault or negligence
negligence. and the damages incurred.
UNDER ARTICLE 3 OF REVISED PENAL CODE In this tort case, respondents contend that
There are two ways of committing a crime. CLC failed to provide precautionary
It can either be through dolo (intentional) measures to avoid harm and injury to its
or culpa (fault). When we say intent, it students in two instances: (1) failure to fix a
automatically excludes fault or defective door knob despite having been
negligence. Under the said article, fault notified of the problem; and (2) failure to
includes negligence. install safety grills on the window where
Timothy fell from.
Q: Is there a difference between Fault or
Negligence? The Court held that fault requires omission
of a positive act, while negligence requires
failure to take needed precaution. In fault,

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there was a positive act that was not FACTS: Ruth Garratt (plaintiff) alleged that
performed but in negligence, there was an she came out into the backyard to talk
omission of care. In this case, there was with her sister. When she was about to sit
fault on the part of CLC in failing to repair down in a wood and canvas lawn chair,
the defective door and failing to put grills five year-old Brian Dailey (defendant)
on the window of the comfort room. deliberately pulled the chair out from
Hence, CLC was held liable for damages. under her. The trial court accepted
defendant’s version of the events that he
was attempting to move the chair toward
FAULT NEGLIGENCE plaintiff to help her in sitting down on the
 A voluntary act  Failure to chair. He maintained that, due to his small
or omission observe for the size and lack of dexterity, he could not get
which causes protection of the the chair under Plaintiff in time to keep her
damage to the interest of from falling. Ruth Garratt's fall resulted in a
right of another another person fractured hip and other painful and serious
giving rise to an that degree of injuries, she filed a case against the boy
obligation on care, precaution
and the parents.
the part of the and vigilance
actor to repair which the
such damage. circumstances ISSUE: Whether the act of moving the chair
justly demand. constituted battery.
 Requires  Omission to do RULING: It is urged that Brian's action in
execution of a acts which result
moving the chair constituted a battery.
positive act in damage to
Battery is the intentional infliction of a
which causes another.
harmful bodily contact upon another.
damage to
another. Dean: It is battery when there is actual
TORTS VS. QUASI - DELICT inflicting of injury, but when there is no
actual infliction of injury it can be classified
While Quasi-delict, pertains only to fault or as an assault.
negligence, such limiting concept cannot
be applied when it comes to torts. In torts, 3. FALSE IMPRISONMENT
being a common law principle, it can
cover any wrong that you can convince Case: LOPEZ VS WINSHELL’S DONUT HOUSE
the judge to believe to be so. It can cover FACTS: The Donut House suspected Lopez,
all wrongful acts - intentional or an employee, of pocketing sales money.
negligence. Lopez voluntarily came to the Donut House
at the request of her employer, and
INTENTIONAL ACTS COVERED BY TORTS remained in a room of the shop until she
accounted the proceeds and cleared her
1. BATTERY – intentional inflicting of name. No force or threats were used to
injury detain Lopez, and she left the room when
2. ASSAULT – no actual infliction of she began to feel ill. The lady employee
injury sued the employers for false imprisonment.

Case: GARRATT VS DAILEY

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ISSUE: Whether or not false imprisonment Seduction or for refund for Actual
occurs if one is compelled to remain in a Damages.
place to protect one’s reputation
Here we have the SC saying that this case
RULING: Remaining in a place to clear is either founded on Article 20 or 21 of the
one’s name does not constitute false Civil Code. The action is based on Article
imprisonment. For a false imprisonment to 20 when there is a law and on Article 21
occur, the plaintiff must have yielded to when there is none but moral customs
force, a threat of force (implied or express), would have to come in.
economic duress or the assertion of
Dean: If you look at torts in relation to
authority. If there is no actual restraint, then
quasi-delict, torts would be broader,
there is no false imprisonment.
because quasi-delict is limited to negligent
Dean: There is false imprisonment when acts. However, if you look at Torts in
there is actual restraint of one’s liberty. relation to our entire system of redress for
Moral restraint will not account for false all sorts of civil wrong, ours is more
imprisonment; it is not sufficient. adaptable than the Anglo-American
concept of Torts.
4. INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS To SUMMARIZE, the differences between
5. INTENTIONAL ACTS WHICH CANNOT Torts and Quasi-delict are as follows:
BE CLASSIFIED IN THIS JURISDICTION
TORTS QUASI-DELICT
AS QUASI-DELICT BECAUSE THEY ARE
Common law Civil law concept
NOT BORN OUT OF FAULT OR
concept
NEGLIGENCE Decisions are Decisions are
based on Law, based on Law only
Q: If quasi-delict is negligence plus no co- Equity or
existing contractual obligation, and tort, Customs/Tradition
being common law, can cover intentional Covers both Covers only
and unintentional acts, is Tort broader than intentional and unintentional acts
Quasi-delict? unintentional acts (since under
Article 2176, it
Is tort broader than civil remedies? No involves merely
Does it have more remedies than our own fault or
legal system? negligence)

Case: GASHEM SHOOKAT BAKSH VS. CA

FACTS: An Iranian exchange courted a COVERAGE OF QUASI-DELICT
pretty, barrio lass. After courtship, the girl  Quasi-delict covers unintentional and
would only accept if a promise to marry voluntary acts. It does not cover
was made. However, after they started involuntary acts because these acts
living together the Iranian became irritable can be used as exempting
and started to abuse her. He ended up circumstances.
reneging on his promise to marry her.  Quasi-delict also covers criminal acts.
RULING: Breach of promise to marry is not The crime committed by a person
actionable unless it amounts to Moral through fault or negligence can be

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 found in Title XIV or the RPC entitled
“Quasi-Offenses”.
Illustration: A car hit a pedestrian. As a
consequence thereof, the pedestrian died.
The crime involved is “Reckless
Imprudence resulting to Homicide”.
Thus, the same act can create two kinds of
liability on the part of the offender, that is:
(a) civil liability ex delicto / delict / culpa
criminal (under Article 100 of the Revised
Penal Code); and (b) civil liability ex-quasi
delicto / quasi-delict / culpa aquiliana
(under Article 2176 of the Civil Code).
CULPA AQUILIANA vs. CULPA CRIMINAL
Case: BARREDO V. GARCIA
FACTS: A head-on collision between a
taxicab owned by Barredo and a carretela
occurred. The carretela was overturned
and one of its passengers, a son of Garcia
and Almario, died as a result of the injuries
which he received. The driver of the
taxicab, an employee of Barredo, was
prosecuted for the crime and was
convicted. When the criminal case was
instituted, Garcia and Almario reserved
their right to institute a separate civil action
for damages. Subsequently, Garcia and
Almario instituted a civil action for
damages against Barredo.
RULING: The Supreme Court distinguished
Culpa Criminal from Culpa Aquiliana in this
manner:
CULPA CRIMINAL CULPA AQUILIANA
affects the public
only of private
interest concern
punishes ormerely repairs the
corrects thedamage by
criminal act means of
indemnification
punished only if includes all acts in
there is a penal which “any kind of
TORTS AND DAMAGES | DEAN JOAN LARGO | MIDTERMS | A.Y. 2017-2018
law clearly fault or negligence
covering them intervenes”
Proof Beyond Preponderance of
Reasonable Doubt evidence
TN: Since the two are different from each
other, they can be separately filed or filed
simultaneously.
CIVIL LIABILITY ARISING FROM A CRIME
Article 100. Every person criminally liable is
civilly liable.
The judge hearing the criminal case should
either convict or acquit the accused. If it
decides to convict, it can also make a
pronouncement as to the civil liability
depending on whether such is impliedly
instituted on the action or not. On the
other hand, if the judge decides to acquit
the accused, then the award of civil
liability will depend on whether the
acquittal is due to reasonable doubt or on
the fact that no crime had been
committed.
Q: If the judgment of the judge in the
criminal case is conviction with civil liability,
can the judge handling the culpa
aquiliana case dismiss the case?
A: Yes, the judge can dismiss the case
because the judgment of conviction was
already with civil liability.
Q: What if it was a judgment of acquittal in
the culpa criminal case? If it is based on
reasonable doubt, there may be a
possibility that it is with civil liability
nonetheless, can the judge dismiss the
case?
A: This was answered in the case of
Lumantas vs. Calapiz.
Case: LUMANTAS VS. CALAPIZ
FACTS: The 8-year old son (Hanz) of
respondent spouses Hilario and Herlita
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Calapiz was brought to the Misamis prosecution, civil liability is still present as
Occidental Provincial Hospital for an there is only acquittal based on
emergency appendectomy. Petitioner reasonable doubt.
Lumantas who was the one attending their
The failure of the prosecution to prove his
son suggested he also should undergo
criminal negligence with moral certainty
circumcision with no added cost.
did not forbid a finding against him that
After the operation, Hanz complained of
there was preponderant evidence of his
pain of his penis and the parents noticed
negligence to hold him civilly liable. The
that the kid is urinating abnormally.
injury or trauma of Hanz was sustained in
However, he was still discharged over his
the hands of petitioner.
parent’s protestations against the hospital.
The kid came back to the hospital Thus, petitioner was compelled to pay the
because of the abscess formation in his moral damages plus interests (6%).
penis. The diagnosis was the kid was
THE EFFECT OF ACQUITTAL TO THE CULPA
suffering from a damaged urethra. Hanz
AQUILIANA CASE.
underwent cycstostomy and other three
operation to repair his damaged urethra. If the acquittal is based on the fact that no
crime has been committed or there was
A criminal charge was filed against
no negligence, the culpa aquiliana case
Lumantas for reckless imprudence resulting
separately filed should not be affected just
to serious physical injuries. However, he was
because the judge handling the culpa
acquitted due to the insufficiency of
criminal case said that no crime has been
evidence from the prosecution. Still, he
committed.
was compelled to pay moral damages
worth 50K. The reason behind this is because the civil
liability we are talking about in the culpa
Petitioner contends that he cannot be
criminal case is civil liability ex delicto. On
liable for moral damages because he was
the other hand, in the culpa aquiliana
acquitted from the crime.
case, we are looking at civil liability ex
ISSUE: Whether Lumantas is still liable from quasi delicto. Quasi-delictual damage is
moral damages considering that he was entirely distinct and separate from the civil
acquitted from the crime. liability arising from negligence under the
Revised Penal Code.
RULING:
If the accused is acquitted based on the
THE EFFECT OF ACQUITTAL TO THE CIVIL
fact that no crime has been committed, it
LIABILITY IN THE CRIMINAL CASE
is only the civil liability ex delicto that is out
Petitioner is still liable. Every person of the picture. There is another way that
criminally liable is also civilly liable. The the accused may be held civilly liable and
acquittal of an accused does not that is to hold him responsible through
automatically mean the acquittal from civil culpa aquiliana.
liability. If the court finds that the accused
Since the law allows two cases to proceed
did not do the crime, then he is not civilly
based on the same negligent act, there is
liable as he is completely innocent.
a possibility of varying pronouncements. If
However, if he is acquitted because there
the judge rendered a judgment of
is insufficiency of evidence from the
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acquittal based on reasonable doubt, it
must have a finding of the civil liability. But
if the acquittal is based on the fact that civilly liable

the crime did not exist, there cannot be culpa aquiliana

any finding of any civil liability. However, not civilly liable

we are only referring to civil liability ex

delicto and should not affect the civil case
for culpa aquiliana. It may have
persuasive effect but not a binding effect. CULPA CONTRACTUAL vs. CULPA
AQUILIANA
In addition, if the judge makes a
pronouncement of acquittal based on Case: CALALAS VS. COURT OF APPEALS
reasonable doubt and there is no finding FACTS: A passenger of a jeepney was
as to the civil liability, an appeal is allowed made to sit on a stool (extension) inside the
as to the civil aspect because it is wrong jeepney. In order to allow a co-passenger
for the judge not to make any finding on to pass, she alighted from the jeepney.
the civil liability. However, the moment she got out of the
However, there could be no double jeepney, another vehicle bumped into the
recovery. said jeepney. This caused physical injuries
to the aggrieved passenger. The
RESERVATION TO FILE AN AQUILIANA CASE passenger filed two separate cases. One
Q: Is there a need to reserve the right to file involves a culpa contractual case against
an aquiliana case in a culpa criminal the driver of the jeepney for breach of the
action which was filed first? contract of carriage and a culpa
aquiliana case against the owner of the
A: No. There are limitations to the Supreme vehicle that bumped into the jeepney.
Court’s rule-making power. While it can
promulgate rules, it cannot promulgate In the case of Manila Railroad Co. vs. La
ones that will modify, diminish or impair Compania Transatlantica, the Supreme
substantive rights. An independent civil Court delineated the differences between
action is considered a substantive right. the culpa in culpa contractual and in
Thus, the moment the reservation to file a culpa aquiliana as follows:
separate independent action is required, it Culpa Culpa
is akin to impairment of substantive rights. Contractual Aquiliana
Cause of Breach of Negligence
The rules may be summarized as follows:
Action Contract
based on
with civil
liability
How the Negligence -
acquittal reasonable
doubt
contract
no civil
liability was
culpa
criminal
case
breached
No crime has no civil
liability
Source Culpa is Culpa is
been committed
incidental to substantive
the and an
conviction with civil liability performance independent
of the source of
obligation obligation.
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 exception, it can still have a finding of a
tortuous conduct even if there is an existing
Dean: You cannot have the scenario of
contract if standing on its own, the act is in
one and the same culpa breeding two
itself a tort.
different cases of aquiliana and
contractual. The most that you can do is GENERAL RULE: Culpa Aquiliana and Culpa
allege them as alternative causes of Contractual cannot co-exist.
action. EXCEPTION: When an act or omission can
nonetheless amount to an actionable tort
This is further supported under the case of
by itself.
Construction Development Corporation vs.
Estrella, where the SC acknowledged that
NEGLIGENCE
the two actions cannot co-exist because it
did not suggest for joinder of causes of
Article 1173. The fault or negligence of the
action.
obligor consists in the omission of that
However, in the case of Regino vs. diligence which is required by the nature of
Pangasinan Colleges, the SC provided for the obligation and corresponds with the
an exception. circumstances of persons, of the time, and
of the place. When negligence shows bad
Case: REGINO VS. PANGASINAN COLLEGES
faith, the provisions of Article 1171 and
OF SCIENCE AND TECHNOLOGY
2201, paragraph 2, shall apply.
FACTS: A teacher from the Pangasinan
Colleges required students from the school
If the law or contract does not state the
to purchase tickets to a rave party in order
diligence which is to be observed in the
to raise funds. One student cannot pay for
performance, that which is expected of a
the said ticket. Due to this, the student was
good father of a family shall be required.
not allowed to take the final examinations.
REQUIRED STANDARD OF CARE
RULING: In the case, the SC emphasized
Q: Is there is a particular standard of care
that there exists a contract between the
to say something is negligent? If
school and the students. The school has
negligence is the omission of diligence, is
the obligation to provide the students with
there a particular standard of diligence to
a safe learning environment. In return, the
say that an act is negligent or not?
students have the obligation to pay the
stipulated fees. In this case however, the A: It depends on the nature of the
tortuous conduct was independent of the obligation. The requirement of diligence
contract between the school and the may also be affected by the
student. circumstances of person, time and place.
Thus, the SC held that although in Art. 2176, (Art. 1173, par. 1)
no culpa contractual and aquiliana can
Negligence then is relative.
co-exist because the existence of a
contract will take the case out of the Illustration/s:
ambit of culpa aquiliana. Rights and
obligations of the parties should be 1) DRIVING ON A HIGHWAY
governed by the contract since it is the law
between the parties. However, as an
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On a clear day, would there be a
difference to the diligence to be observed
if driving at night? – Yes
On a rainy night? – Yes
On a clear night? – Yes
2) MINORS
The diligence required of that of a minor
would vary in comparison to the kind of
diligence expected of an adult as was
shown in the case of Ylarde et al., vs.
Aquino, et al. The SC said that it was
perfectly okay for children, 9 years of age,
to be playing while the teacher was away.
It is expected of children to play when the
teacher leaves the classroom. The SC
would not give the same forgiving stance if
what was involved was a law student.
3) GUN STORE OWNER
A gun owner is also required to exercise a
higher degree of precaution.
4) BLIND PERSON
The degree of care required of a blind
person is the degree of care that one
would reasonably expect from a blind
person.
Case: FRANCISCO vs CHEMICAL BULK
CARRIERS
FACTS: Francisco, a blind person, bought
fuels from Bacsa, who misrepresented that
he was a confidential secretary of the
CBCI. However, the proceeds from such
was never turned over to CBCI, the latter
alleging that they never authorized the
sale of these fuels to Bacsa.
RULING: One who is physical disabled is
required to use the same degree of care
that a reasonably careful person who has
the same physical disability would use.
Physical handicaps and infirmities, such as
blindness or deafness, are treated as part
of the circumstances under which a
TORTS AND DAMAGES | DEAN JOAN LARGO | MIDTERMS | A.Y. 2017-2018
reasonable person must act. Thus, the
standard of conduct for a blind person
becomes that of a reasonable person who
is blind.
DILIGENCE REQUIRED
In default of a stipulation or a law fixing the
diligence required, the diligence of good
father of a family is required. (Art. 1173,
par. 2)
STIPULATION AS TO THE DEGREE OF
DILIGENCE
Q: Can parties stipulate that the diligence
required is only slight degree of care?
A: Yes, they can. This is because the
diligence is dependent upon the nature of
the obligation and the circumstances of
person, time and place. (Transcriber’s note:
There was no definite answer given by
dean.)
However, there are instances wherein the
parties cannot stipulate the diligence
required such as when the law provides for
the diligence to be exercised.
e.g. Common Carrier – Extraordinary
diligence
Banks – Highest degree of diligence
TEST OF NEGLIGENCE
Case: PICART vs SMITH
FACTS: A person, while riding a pony,
encountered a car for the first time. This
was in 1908. Looking at it as if it were an
apparition, not knowing he was already on
the wrong lane, the driver of the car had
to honk his horn to get his attention.
This, in turn, startled the pony, causing the
rider to fall off and sustain injuries. He filed a
case for damages against the driver of the
car.
RULING: The SC grappled with contributory
negligence, but more importantly this is
where the concept of negligence was first
established.
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The tests of negligence are as follows:
1. THE HARM IS FORESEEABLE; AND
2. THERE WAS FAILURE TO EXERCISE
THE NECESSARY PRECAUTION.
BURDEN OF PROOF
As a rule, one who alleges has the burden
of proof. Whoever alleges negligence has
the burden of proving negligence.
However, there are instances where we
are relieved of proving negligence. These
are:
1.) PRESUMPTION OF NEGLIGENCE
2.) RES IPSA LOQUITOR
PRESUMPTION OF NEGLIGENCE
When a party can prove the situation
where negligence must have existed, the
presumption of negligence attaches to the
other party. It now becomes incumbent on
the other party to disprove such rebuttable
presumption.
PRESUMPTIONS:
1. When one had been violating traffic
regulation at least twice within the
preceding two months, and gets into
an accident then there is a
presumption of negligence against
that individual. (Art. 2184, NCC)
All one needs to establish that at the time
of the incident, this person has committed
traffic violation at least two months
preceding the incident.
2. When a person was driving a motor
vehicle and was violating a traffic
regulation when an accident
occurred, the presumption of
negligence attaches upon him. (Art.
2185, NCC)
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Case: ANONUEVO vs. CA
FACTS: Villagracia was traveling along Boni
Avenue on his bicycle, while Anonuevo
traversing the opposite lane was driving his
car which was owned by Procter and
Gamble Inc. Anonuevo was in the course
of making a left turn towards Libertad
Street when the collision occurred. When a
suit for damages was filed against
Anonuevo, he claimed that Villagracia
violated traffic regulations when he failed
to register his bicycle or install safety
gadgets thereon. He posits that Article
2185 of the New Civil Code which
presumes the driver of a motor vehicle
negligent if he was violating a traffic
regulation at the time of the mishap,
applies by analogy to bicycles.
Dean: Before the presumption in Art. 2185
applies, what must be involved is a motor
vehicle. In this case, what was involved
was a car and a bicycle. It was the bicycle
rider who was negligent because at the
time of the incident, it does not have
reflectorized bicycle as required by
municipal ordinance. The SC said Art. 2185
does not apply because what should have
been involved is motor vehicles. In this
case, what was involved was a bicycle
rider. Even by analogy, it cannot be
applied because as can be read on the
deliberations of the framers of the civil
code and they are already aware of the
existence of the bicycle and motor
vehicles, yet, they sought to regulate only
motor vehicles.
RES IPSA LOQUITOR
DEFINITION
It is a rebuttable inference that defendant
was negligent, which arises upon proof
that instrumentality causing injury was in
the defendant’s exclusive control, and that
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the accident was one which ordinarily
does not happen in absence of
negligence.
REQUISITES
1. THE OCCURRENCE OF AN INJURY;
2. THE THING WHICH CAUSED THE INJURY
WAS UNDER THE CONTROL AND
MANAGEMENT OF THE DEFENDANT;
3. THE OCCURRENCE WAS SUCH THAT IN
THE ORDINARY COURSE OF THINGS,
WOULD NOT HAVE HAPPENED IF THOSE
WHO HAD CONTROL OR
MANAGEMENT USED PROPER CARE;
AND
4. THE ABSENCE OF EXPLANATION BY THE
DEFENDANT.
Dean: We did not lump this one with
presumption because this is NOTa
presumption of negligence. This is a
procedural inference on negligence.
Case: AFRICA VS. CALTEX
FACTS: Caltex as well as the whole block
was razed and gutted down by fire. Africa
filed a case against Caltex. Caltex claimed
that Africa had the burden of proving
negligence.
RULING: The SC said that this is an instance
where the incident would not happen
unless one of the parties was negligent. The
instrument that caused the incident is
within the control of the Caltex. This being
the case, Africa is relieved of proving
negligence because negligence was
imputed on Caltex.
The SC used this occasion to say that res
ipsa loquitor is not applicable when one
cannot prove negligence. It applies when
the event, by its very nature, is one where
negligence must have been present, and
the exclusive control was with the plaintiff.
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This does not rest on presumption but
rather on inference.
Case: LAYUGAN VS. IAC
The SC emphasized that the doctrine can
be invoked ONLY when direct evidence is
absent and not readily available.
Case: CARMEN VS. BACOY
FACTS: The Bacoy Family were on their way
home from a Christmas party when they
were run over by a passenger jeep.
RULING: The SC applied here the doctrine
of res ipsa Loquitor saying that no person
just walking along the road would suddenly
be sideswiped and run over by an on-
rushing vehicle unless the one in charge of
the said vehicle had been negligent.
(TRANSCRIBER’S NOTE: Dean does not
agree with the ruling in this case because
direct evidence is available here but
anyway the SC said it is res ipsa Loquitor.
Just follow the pronouncement of the SC.)
DOCTRINE OF PROXIMATE CAUSE
Article 2179. When the plaintiff’s
negligence was the immediate and
proximate cause of his injury, he cannot
recover damages. But if his negligence
was only contributory, the immediate and
proximate cause of the injury being the
defendant’s lack of due care, the plaintiff
may recover damages, but the court’s
shall mitigate the damages to be
awarded.
DEFINITION
Proximate cause is that cause which, in a
natural and continuous sequence,
unbroken by any efficient intervening
cause, produces the injury, and without
which the injury would not have occurred.
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NEGLIGENCE OF THE DEFENDANT AS THE negligent bus driver because the act of
PROXIMATE CAUSE the villagers in carrying the torch, even if it
To be liable under quasi-delict, the was the immediate cause, was not an
negligence of the defendant must be the efficient intervening cause.
proximate cause of the incident.
DEFENSES
Case: SANITARY STEAM LAUNDRY
FACTS: This is a case involving two vehicles The following are the defenses available to
colliding, a truck and a Cimmaron. the defendant in order to relieve himself
Petitioner alleged that the Cimmaron was liability:
violating a traffic regulation as it does not
1) ALTHOUGH THERE IS NEGLIGENCE,
have headlight and was overloading.
SUCH IS NOT THE PROXIMATE CAUSE;
RULING: Even if there was negligence on
2) NEGLIGENCE OF THE PLAINTIFF IS THE
the part of the owner of the Cimarron, that
PROXIMATE CAUSE;
negligence was not the proximate cause
because the collision would still have
Case: FE CAYAO-LASAM VS. RAMOLETE
happened even if it had the two
FACTS: Lasam underwent a Dilatation and
headlights required by law and even if it
Curettage Procedure. She was told to
was not overloaded. The court held that a
come back for a follow-up check-up.
causal connection must exist between the
However, she failed to do so.
injury received and the violation of the
Complications arose resulting in her
traffic regulation for such violation to be
inability to conceive a child.
the proximate cause.
RULING: The Supreme Court held that the
Case: TISON VS. POMASIN plaintiff’s negligence in refusing to have
The SC held that in order for the plaintiff to her follow-up check-ups was the proximate
recover, there has to be negligence that it cause of the injury.
is the proximate cause of the incident. A
causal connection must have been EXCEPTION: DOCTRINE OF IMPLIED
established. Negligence per se will not INVITATION TO VISIT THE PREMISES OF
bring forth liability because if such ANOTHER
negligence is not the proximate cause,  GR: If one is a trespasser, he is
then there can be no liability for quasi- presumed negligent.
delicts.  Exception: If the trespasser is a child
of tender years, then the
THE TEST IS NOT IMMEDIACY, BUT
presumption of negligence may not
PROXIMATE CAUSATION.
apply.
Case: BATACLAN VS. MEDINA
Rationale: A child of tender years may be
FACTS: A vehicle fell off a cliff and as a
enticed of such attractive nuisance.
result thereof, gasoline leaked from the
vehicle. Villagers were trying to rescue the
victims. However, because the accident Case: TAYLOR VS. MANILA ELECTRIC
happened at dawn, the villagers carried a FACTS: Manila Electric Railroad Light and
torch. Due to this, the vehicle caught fire. Co. was engaged in the operation of a
RULING: The Supreme Court nevertheless street railway and electric light system in
held that the one responsible is the City of Manila. When David Taylor and a
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companion visited the premises, they
found an empty lot where fulminating caps
from the Manila Electric were thrown at.
They brought the caps home and played
with it. They opened thae cap and lighted
the contents with a match. An explosion
happened causing them injuries with David
sustaining injuries in his right eye.
RULING: In this case, the Supreme Court
held that the doctrine of implied invitation
to visit the premises of another cannot be
applied, as the child, although a minor,
cannot be considered a child of tender
years.
3) ASSUMPTION OF RISK;
Case: AFIALDA VS. HISOLE AND HISOLE
FACTS: A caretaker of a carabao was
gored to death by the very carabao he
was taking care of. The heirs of the
caretaker filed a case against the owner of
the carabao.
RULING: The Court said that the animal was
in the custody of the caretaker who was
paid for such work. So it was the business of
the caretaker to prevent the carabaos
from causing injury to anyone and to
himself. Because he took the job, he is
deemed to have so assumed the risk.
Case: ILOCOS NORTE CO. VS. CA
FACTS: A woman, immediately after the
typhoon, had to rush to her sari-sari store in
order to rescue her merchandise. But while
wading her way to the store in waist-deep
water, she was electrocuted. The family
sued the electric company for its
negligence when it left its electric wire
dangling from a post dangerously. The
company raised the assumption of risk as a
defense.
RULING: The Supreme Court said that the
defense of assumption of risk does not
apply if it is shown that the victim is
TORTS AND DAMAGES | DEAN JOAN LARGO | MIDTERMS | A.Y. 2017-2018
responding to an emergency or the life or
property of another is in peril or if he seems
to rescue endangered property.
Case: NIKKO HOTEL MANILA GARDEN
FACTS: Roberto was having coffee at the
hotel lobby when he alleged that he was
invited by his friend, a doctor, to join him at
a birthday celebration, as well as to aid
him in delivering a basket of fruits to the
event at the penthouse. Roberto asked if
she could vouch for him and the doctor
said “Of course.” At that party, he was told
to leave by the executive secretary. This
was allegedly done by the secretary in a
loud voice. Roberto retorted that he had
been allowed to come by his friend, who
subsequently denied doing so.
Makati Policemen approached him and
escorted him out of the hotel.
Deeply embarrassed by the incident,
Roberto sued the hotel for damages under
Article 19 and 21 of the Civil Code. The
defense of the hotel was that, as a
gatecrasher, Roberto was under the
assumption of risk that he may be told to
leave.
ISSUE: Whether Roberto, as a gatecrasher,
recover damages?
RULING: The court said that, although it
may be true that as a gatecrasher, the
party organizer has the right to ask the
former to leave, this right must not be
abused. The gatecrasher must not be
subjected to humiliation and shame. The
gatecrasher assumes the risk of being
asked to leave but does not assume the
risk of being humiliated and subjected to
unnecessary ridicule and shame.
However, Roberto’s testimony that they
were standing so close to each other that
they were almost kissing rebuts his own
allegation that the hotel manager shouted
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at him. So the court did not award him
damages.
4) DOCTRINE OF LAST CLEAR CHANCE;
Also known as doctrine of discovered peril,
humanitarian doctrine, doctrine of
intervening negligence, the “known
danger rule”.
DEFINITION
A person who has the last clear chance or
opportunity of avoiding an accident,
notwithstanding the negligent acts of his
opponent or the negligence of a third
person which is imputed to his opponent, is
considered in law solely responsible for the
consequences of the accident.
In essence, when both parties are
negligent, but the negligent act of one is
appreciably later in time than that the
other, or when it is impossible to determine
whose fault or negligence should be
attributed to the accident, the one who
had the clear opportunity to avoid the
impending harm and failed to do so is
chargeable with the consequences.
EFFECT OF THE APPLICATION OF THE
DOCTRINE
The doctrine of last clear chance absolves
the plaintiff from negligence because such
negligence was prior or antecedent. The
court will only take into account the
negligence of the defendant which, if not
present, would have prevented the
damage from happening.
5) DOCTRINE OF
NEGLIGENCE
Article 2179. ARTICLE 2179. When the
plaintiff's own negligence was the
immediate and proximate cause of his
injury, he cannot recover damages. But if
his negligence was only contributory, the
TORTS AND DAMAGES | DEAN JOAN LARGO | MIDTERMS | A.Y. 2017-2018
immediate and proximate cause of the
injury being the defendant's lack of due
care, the plaintiff may recover damages,
but the courts shall mitigate the damages
to be awarded.
DEFINITION
The act or omission amounting to want of
ordinary care on the part of the person
injured which, concurring with the
defendant’s negligence, is the proximate
cause of the injury.
It has been held that, “to hold” a person as
having contributed to his injuries, it must be
shown that he performed an act that
brought about his injuries in disregard of
warning and signs of an impending danger
to health and body.
EFFECT OF THE APPLICATION OF THE
DOCTRINE
This is merely an incomplete defense. Such
that when this doctrine is applied, the
defendant will not be completely absolved
from liability. His liability will only be
mitigated due to the contributory
negligence of the plaintiff.
Case: JARCO MARKETING VS CA
FACTS: A mother and daughter went to the
mall to shop. Upon paying, the mother had
to let go the hand of the child to sign the
credit card slip. The child went near one of
the counters in the store and it collapsed
on her. This resulted in her sustaining injuries
and her subsequent death. The mother
CONTRIBUTORY filed a case against Jarco Marketing.
Among the defenses had been raised by
Jarco were: 1) The mother was guilty of
negligence by letting go of the child’s
hand so she was able to climbed this
counter top and then collapse on her; and
2) the accident was caused by the child’s
14 | P a g e
negligence when she brought herself on However, the
the counter. negligence of the
defendant is still the
ISSUE: Whether the negligence is solely proximate cause of
attributable to Jarco Marketing. the injury. Thus, there
RULING: Yes. The mother should be is no bar to
recovery.
absolved from any contributory
The liability of the The defendant is
negligence. There is no harm foreseeable
defendant is solely liable; hence,
in letting go of the child’s hand to sign the
mitigated. there is full recovery.
credit card slip. Thus, there is no
contributory negligence on the part of the
mother’s part. 6) EMERGENCY RULE

Anent the negligence of the child, the
Supreme Court applied the conclusive
presumption that favors children. If the
child is below 9 years old, in criminal law,
he is conclusively presumed incapable of
acting with discernment. Since he is
conclusively presumed to have acted
without discernment, then he is also
conclusively presumed to be incapable of
contributory negligence. In this case, the
child was under 9 at the time of the
incident, so she is conclusively presumed to
be incapable of contributory negligence.
Jarco Marketing was held solely liable for
the death of the child.
TN: If there is allegation of negligence, it
should be tested using the two lenses of
foreseeability and failure to exercise the
necessary precaution in order to avoid the
injury.
DOCTRINE OF CONTRIBUTORY NEGLIGENCE
vs. DOCTRINE OF LAST CLEAR CHANCE
CONTRIBUTORY
NEGLIGENCE
Both the plaintiff
and the defendant
were negligent.
The negligence of
the plaintiff is
concurrent with that
of the defendant.
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An individual who suddenly finds himself in
a situation of danger and is required to act
without much time to consider the best
means that may be adopted to avoid the
impending danger, is not guilty of
negligence if he fails to undertake what
subsequently and upon reflection may
appear to be a better solution, unless the
emergency was brought by his own
negligence.
Case: VALENZUELA VS CA
FACTS: Valenzuela was experiencing flat
tire. This prompted her to park on the side
of the road. While standing at the rear
portion of her vehicle to fix the tire, she was
bumped by a vehicle driven by
Respondent Li resulting to amputation of
her leg.
The male driver argued that Valenzuela
was negligent for having parked at the
side of the highway when there was a
barangay road a few meters ahead where
she could have parked properly.
LAST CLEAR CHANCE ISSUE: Whether Valenzuela is negligent in
parking the car
Both the plaintiff
and the defendant RULING: An individual who suddenly finds
were negligent. himself in a situation of danger and is
The negligence of required to act whiteout much time to
the plaintiff is far consider the best means that may be
removed from the adopted to avoid the impending danger,
time of the incident. is not guilty of negligence if he fails to
15 | P a g e
undertake what subsequently and upon
reflection may appear to be a better
solution, unless the emergency was
brought by his own negligence.
The SC said, a woman driving a vehicle
suddenly crippled by a flat tire on a rainy
night will not be faulted for stopping at a
point which is both convenient for her to
do so and which is not a hazard to other
motorist.
7) PRESCRIPTION
Art 1146. The following actions must be
instituted within four years:
(1) Upon an injury to the rights of the
plaintiff;
(2) Upon a quasi-delict;
Case: KRAMER VS CA
RULING: The prescriptive period begins
from the day the quasi-delict is committed.
In an action for damages arising from
collision of 2 vessels the four year
prescriptive period must be counted from
the day of the collision. The aggrieved
party need not wait for a determination by
an administrative body like the Board of
Marine Inquiry that the collision was
caused by the fault or negligence of the
other party before he can file damages.
LIABILITY FOR ACT OR OMISSION
TORTFEASOR
Art. 2176. Whoever by act or omission
causes damage to another, there being
fault or negligence, is obliged to pay for
the damage done. Such fault or
negligence, if there is no pre-existing
contractual relation between the parties, is
called a quasi-delict and is governed by
the provisions of this Chapter.
Q: What if there are several tortfeasors?
TORTS AND DAMAGES | DEAN JOAN LARGO | MIDTERMS | A.Y. 2017-2018
A: They are jointly and severally liable
TN: A tortfeasor is not only liable for one’s
own act or omission but also for those
persons for whom one is responsible.
VICARIOUS LIABILITY
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.
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.
Lastly, teachers or heads of establishments
of arts and trades shall be liable for
damages caused by their pupils and
16 | P a g e
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.
Dean: Why are we holding the employer
liable? Is it because of the act of his
employee? What does it mean when it
says “for those of persons for whom one is
responsible”?
There are two views on the matter.
FIRST: THE BASIS OF THE LIABILITY OF THE
EMPLOYER IS THE ACT OR OMISSION OF THE
EMPLOYEE
Q: Is this an exception to our system of
redress which is founded on holding one
responsible for his own act?
If yes, then the basis of the employer’s
liability is the omission of the employee or
the act of the employee that caused
damage to the third person.
If the basis of the liability is the act or
omission of the employee, then the
employee should be impleaded or
included. It cannot be the case that the
employee is not in the picture because he
is in fact the basis of the responsibility.
SECOND: THE BASIS OF THE LIABILITY OF THE
EMPLOYER IS HIS OWN NEGLIGENCE
A person has committed an act that
causes damage to another. This person is
under the care and supervision of another.
Had there been an exercise of the
necessary diligence in supervising the
person under his care, the latter may have
not committed the act causing damage
to another. If that is the line of reasoning,
then it would be very clear that the reason
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why the employer is held responsible is not
because of the act or omission of the
employee but the failure of the employer
to supervise or exercise the diligence of
the person who is responsible for another.
The basis of the liability is his own
negligence although that negligence
arose by way of imputation of the act or
omission of another that has caused
damage to another person. If this is the line
of reasoning, then there is no violation of
the fundamental principle that one can be
held responsible for his own act or omission.
The case can proceed even without
impleading the person for whom one is
vicariously liable for as the latter is not an
indispensable party.
If the liability of the employer is premised
on the act or omission of the employee,
and not his own negligence, then the
employee becomes an indispensable
party. In remedial law, while it is true that a
case is not dismissed by reason of failure to
implead, the judge will require an
indispensable party to be impleaded since
without him, the complete resolution of the
case cannot be done.
Case: CEREZO VS. TUAZON
FACTS: The driver employed by Cerezo
caused an accident. In this case, the driver
absconded so the aggrieved party is just
left with the option to sue Cerezo. Cerezo
said that it might be his responsibility but
the erring driver should also be impleaded
because the cause of the injury was the
driver’s act or omission.
RULING: Whenever we mention of vicarious
liability, it is the DIRECT and PRIMARY
liability of the parents, guardians, teachers,
employers, and state, the persons held
vicariously liable. Thus, he can be
proceeded against singly or together with
the person for whose acts or omissions he is
made responsible for.
17 | P a g e
Thus, the liability of the persons
enumerated under Article 2180 of the Civil
Code arises from the failure of these
persons to supervise. Failure to supervise is
imputed from the fact that the person
under his care has committed an act or
omission causing damage to another.
The law attaches the presumption of
negligence on his part for failing to
supervise.
PARENTS
Art. 2180 (civil code) xxx
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.
xxx
Article 221 (Family code)
Parents and other persons exercising
parental authority shall be civilly liable for
the injuries and damages caused by the
acts or omissions of their unemancipated
children living in their company and under
their parental authority subject to the
appropriate defenses provided by law.
In both laws, the common denominator is
that they involve children living with their
parents. Civil Code says minor children.
Family Code says unemancipated
children.
Dean: One of the effects of reaching the
age of majority is that a person is
emancipated from parental authority. Let’s
just say the one that is involved is a child
living in the company of parents.
The parents cannot supervise if the child is
not living in your company. For family code
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to be applied, the trigger is you are an
unemancipated child living in the
company of your parents.
Minority
RA 6809
Nothing in this code shall be construed to
derogate from the duty or responsibility of
parents for children onwards below 21 as
mentioned in the second and third
paragraph of 2180. For purposes of
vicarious liability, minor should be read to
mean below 21.
There is a twist here about the meaning of
minor, if you read the law reducing the
age of majority from 21 to 18, there is a
specific provision there that says: “Majority
commences at the age of 18 but nothing
in this code shall be construed to derogate
from the duty and responsibility of parents
and guardians for children and wards
below 21 years of age mentioned in the
2nd and 3rd paragraphs of 2180.”
Thus, the vicarious liability of parents to
below 21 still subsists because of the
reservation made in the new law, even
when the age of majority is now 18. So,
there is no more parental authority after 18
but there is still parental liability until 21.
BAR QUESTION:
On May 5, 1989, a 16-year-old was driving
a car, which was a gift from his parents. He
was told to accommodate 4 of his
classmates because the van to be used for
the field trip was inadequate to
accommodate the whole class. On the
way to the museum, he made a wrong
maneuver and collided with a jeepney.
One of his classmates died while he and
the others were badly injured. Who is liable
for the death and the injuries suffered?
18 | P a g e
Dean: One would most probably make the Case: TAMARGO et al. vs CA
parents liable. Don’t forget the school The principle of parental liability is a
administrator and the teacher, because species of what frequently designated as
this is presumed to be an authorized school vicarious liability, or the doctrine of
activity. “imputed negligence” under Anglo-
American tort law, where the person not
Article 101 of the Revised Penal Code.
only liable for torts committed by himself,
Rules regarding civil liability in certain
but also for torts committed by others
cases. - The exemption from criminal
whom he has a certain relationship and for
liability established in subdivisions 1, 2, 3, 5
whom he is responsible. Thus, parental
and 6 of Article 12 and in subdivision 4 of
liability is made a natural or logical
Article 11 of this Code does not include
consequence of the duties and
exemption from civil liability, which shall be
responsibilities of parents- their parental
enforced subject to the following rules:
authority—which includes instructing,
First. In cases of subdivisions 1, 2, and 3 of
controlling, and disciplining of the child.
Article 12, the civil liability for acts
committed by an imbecile or insane
Dean: Who can be held liable for the act
person, and by a person under nine years
or omission causing damage to another of
of age, or by one over nine but under
the minor opt for adoption, the biological
fifteen years of age, who has acted
parents or the adopter/adopting parents?
without discernment, shall devolve upon
If the basis of the charging is the ability to
those having such person under their legal
supervise, the one who has the actual
authority or control, unless it appears that
custody at the time of the incident should
there was no fault or negligence on their
be the one who can be held responsible.
part.
And in this case, the parent held liable not
Should there be no person having such
because they are the natural parents and
insane, imbecile or minor under his
their blood is in the blood of this boy but
authority, legal guardianship or control, or
because it was the natural parents who
if such person be insolvent, said insane,
have the actual custody. The court settled
imbecile, or minor shall respond with their
the issue by determining who has the
own property, excepting property exempt
actual custody at the time of the act
from execution, in accordance with the
complained of.
civil law.
Xxx
SUMMARY: (basis of civil liability)
The parents shall be held primarily liable
1. Family code- Parents and other
with respect to damages ex delicto
persons exercising parental authority
caused by children 9 years of age or
of unemancipated child living in the
under, or over 9 but under 15 years of age
company of your parents;
who acted without discernment; and, with
regard to the children over 9 but under 15
2. Civil code- parents and guardians
years of age acted with discernment, or 15
for children and wards below 21
years or over but under 21 years of age,
years of age
such primary liability shall be imposed
- Parents with respect to
pursuant to Article 2180 of NCC.
damages ex delicto caused by
children over 9 years of age but
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 under 15 years of age who acted
with discernment.
3. Revised penal code- parents with
respect to damages ex delicto
caused by 9 years of age or below,
or 9 years but under 15 years who
acted without discernment.
GUARDIANS
Art. 2180 (c). 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.
xxx
Guardians are liable for damages caused
by the minors or incapacitated persons
who are under their authority and live in
their company.
Art. 2182. If the minor or insane person
causing damage has no parents or
guardian, the minor or insane person shall
be answerable with his own property in an
action against him where a guardian ad
litem shall be appointed.
Dean: If there is no property, it’s better not
to sue the child because it will be just a
waste of money and other resources.
EMPLOYER
Can either be under:
1. Art. 2180 of New Civil Code
2. Art. 103 of Revised Penal Code
3. Provision involving a Common
Carrier
TN: The importance to differentiate these
provisions is for one to know what defenses
to raise.
VICARIOUS LIABILITY UNDER ART. 2180 OF
CIVIL CODE
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Article 2180(4). 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.
Article 2180(5). 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.
Paragraphs 4 & 5 is the legal basis of the
liability of the employer.
 Par. 4 is the basis if the employer is
engaged in business.
The employer is liable if the
employee is in the service of the
branches or is acting in the occasion
of his function.
 Par. 5 is the basis if not engaged in
business.
The employer is liable if the
employee is in the performance of
his assigned task.
ON THE OCCASION OF EMPLOYEE’S
FUNCTION; meaning
Q: Is going to and from the employee’s
workplace considered to be on the
occasion of employee’s function?
A: Apply the Special Benefit Rule.
SPECIAL BENEFIT RULE
Under such rule, it will only be considered
as done on the occasion of employee’s
function if the employer has derived some
special benefit.
Getting to the workplace is ordinarily the
employee’s personal problem. Therefore,
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not part of the services an employee
would render to the employer. If an
employee then travels to work using a
company issued vehicle, it is more of a
benefit given to such employee than it
being of benefit to the employer. Hence,
not done on the occasion of one’s
functions.
It can be however be considered a special
benefit to the employer when the
employee is using a company issued
vehicle to attend a meeting with a client
during lunch break. As such, the employer
may be held liable as it is on the occasion
of the employee’s functions.
TN: Without such special benefit, the use of
the company issued vehicle alone does
not make the act done on the occasion of
the employee’s functions.
SUBSIDIARY LIABILITY UNDER ARTICLE 103 OF
THE REVISED PENAL CODE
Art. 103, Revised Penal Code. Subsidiary
civil liability of other persons. — The
subsidiary liability established in the next
preceding article shall also apply to
employers, teachers, persons, and
corporations engaged in any kind of
industry for felonies committed by their
servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.
ARTICLE 2180 OF THE NCC vs. ARTICLE 103
OF THE RPC
ARTICLE 2180 OF THE
NCC
Employer is liable
regardless of
whether it is
engaged in business
or not.
Vicarious liability
TORTS AND DAMAGES | DEAN JOAN LARGO | MIDTERMS | A.Y. 2017-2018
“Plaintiff vs. “People vs.
Employer”; Employee”;
Employee need not Employer may be
be impleaded as he held subsidiarily
is not an liable (file a motion).
indispensable party.
If there is conviction and at the same time
damages to be awarded under Article
103, judgment will be enforced by a
motion for issuance of a writ of execution.
This is a writ directed to a sheriff to satisfy
the judgment through the properties of the
accused.
Q: If the civil aspect is returned unsatisfied
because of the insolvency of judgment
debtor, what should be done next?
A: File a motion to hold the employer
subsidiarily liable under Art. 103.
WHAT TO ALLEGE IN THE MOTION?
1. Employer is engaged in some kind of
industry;
2. That the employee has committed
an act in the discharge of his
function; and
3. The employee is insolvent.
Q: How do you show that the employee is
insolvent?
A: Sheriff’s report indicating that the writ is
returned unsatisfied since the judgment
debtor/accused is insolvent.
ENGAGED IN SOME KIND OF INDUSTRY;
meaning
ARTICLE 103 OF THE
RPC In this case of Solidum vs people, SC has
Employer must have defined for us what is meant by the phrase
been engaged in “engaged in some kind of industry”. It is
some kind of an defined as “any department, branch of
industry or business art, occupation or business that employs
in order to be held labor and capital". The employer must
liable have been earning some profits from it. In
Subsidiary liability this case, the employer of Dr. Solidum, the
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hospital, was a non-stock, non-profit qualifications, experience and
institution. However, it does not mean that service record. These facts must be
the establishment is not earning profits. It is shown by concrete proof including
still earning profits, but are not distributed. documentary evidence. Oral
There must be some expectation of profit. testimony, which tends to prove that
the employer had examined all
Q: In this motion, the employer is being
these, is not enough. Such testimony
brought for the first time and holding him
has to be testified on AND also
liable totally. How does this not offend due
supported by the corresponding
process?
documents.
A: There is no violation of due process since
by bringing this motion, there will be a
2. DUE DILIGENCE IN THE SUPERVISION
hearing on such motion and in which case,
the employer can set up defenses.
There has to be showing that the
employer formulated standard
Q: If all the elements (the allegations to be
operating procedure, monitored the
proved in the motion, as discussed earlier)
implementation of those SOPs or
are present, what happens?
policies and imposed sanction in the
A: The liability becomes automatic. The
event of any breach or violations.
employer cannot claim that there is denial
These should be established by
of due process because the employer is
documentary evidence. Caution
given a day in court to set up defenses
them on just issuing oral warning or
and to prove that not all the elements are
reprimand. Everything has to be in
present.
writing like in a memo.
Q: Can the defense of due diligence in the TN: The court requires documents because
selection and supervision be raised in this testimonies can be biased.
action?
CONTRACT OF CARRIAGE
A: NO. This is not one of the defenses that
Article 1759, New Civil Code. Common
can be set up under Art. 103. Anchor your
carriers are liable for the death or injuries to
defenses that not all the elements are
passengers through the negligence or
present. Defense of due diligence in the
wilful acts of the former’s employees,
selection and supervision can only be
although such employees may have
raised as a defense in an action under Art.
acted beyond the scope of their authority
2180.
or in violation of the orders of the common
carriers. This liability of the common carriers
Under Article 2180, It must be proved that
does not cease upon proof that they
the employer has exercised due diligence
exercised all the diligence of a good
in both the selection and supervision of the
father of a family in the selection and
employee. How is this satisfied?
supervision of their employees.
1. DUE DILIGENCE IN THE SELECTION
Illustration: For a certain distance, the usual
The court said that the employer travel time is 3 hours. However, the driver
must scrutinize and examine the travelled such distance for only for 2.5
employee’s application, hours. This will give an impression that the
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driver had broken all possible prescribed
speed limit.
The defense of having a policy and the
consequent violation of the employee of
these orders is not available to the
common carrier. Even if the employee has
exceeded his authority, the common
carrier will still be held liable. This is as
opposed to Article 2180 of the New Civil
Code, wherein having these guidelines /
policies may be a defense.
TN: The civil code is explicit in saying that
the defense of diligence of good father of
family in the selection and supervision of
employees cannot be used, precisely
because that defense is only for Art 2180.
DEFENSE OF THE COMMON CARRIER
 Exercise of extraordinary diligence.
BAR QUESTION 2015 (7%)
A driver of a bus owned by company Z, run
over a boy who died instantly. A criminal
case for reckless imprudence resulting to
homicide was filed against the driver. He
was convicted and was ordered to pay 2
million for actual and moral damages to
the parents of the boy who was an honor
student and had a bright future. Without
even trying to find out if the driver has
assets or means to pay the awarded
damages, the parents of the boy filed a
civil action against the bus company to
make it directly liable for the damages.
a. Will the action prosper? If the parents
of the boy do not wish to file
separate civil action against the bus
company, can they still make the
bus company liable if the driver
cannot pay the awarded damages?
4%
TORTS AND DAMAGES | DEAN JOAN LARGO | MIDTERMS | A.Y. 2017-2018
b. If so, what is the nature of the
employer’s liability? And how may
the civil damages be satisfied? 3%
BAR QUESTION 2013 (8%)
PhilAsia air flight 916 was on schedule flight
from Manila when they crashed as it
landed in CDO airport. The pilot
miscalculated the plane’s approach and
the plane undershot the runway. Of 150
people on board 10 passengers died at
the crash scene. Of the 10, one of the
passengers managed to leave the plane
but was run over by an ambulance.
Another was an airline employee who had
a free ride who was not in the passenger
manifesto. It appears from the civil
aeronautics investigation authority that the
co-pilot who has the control of the ring has
less than the required flight and landing
time experience and should not have the
plane in control at that time. He was
allowed to fly as the co-pilot because of
the scarcity of the pilot because the
Philippine Pilot have been recruited by
foreign airlines and improved their flying
terms and wages so the newer and less
trained pilots are being locally deployed.
The main pilot on the other hand, had a
very high level of blood alcohol at the time
of the crash. You are part of the team for
the victims to handle the case, as a group
in your case conference the following
questions came out:
1. Explain the causes of action legally
possible under the given facts
against the airline and the pilots.
Who will be impleaded in these
causes of action?
A: The cause of action is breach of
contract of carriage. Implead Phil Asia as
common carrier. File a case against the
pilots for criminal case of reckless
imprudence. Insolvency is the requirement
23 | P a g e
before Phil Asia may be impleaded by a  CTC: When the basis of suit is
mere motion through Article 103 of the contract of carriage, the defense is
RPC. extraordinary diligence.
 UTI: If the basis of suit is quasi-delict,
2. How will you handle the case
defense of good father of family in
against the driver of the ambulance
the selection and supervision is
who ran over one of the passengers?
applicable.
What governs the ambulance
 And as to the basis of the criminal
driver? Quasi-delict. Who will be
case against the driver, the elements
impleaded? The driver of the
of Art 103 of the RPC will be
ambulance
applicable.
A: The passenger who was run over by an
ambulance may file a case against Phil
Asia and the owner of the hospital under
quasi-delict.
BAR QUESTION 2009 (9%)

One of the passenger buses owned by

Continental Transit Corporation (CTC),
plying its usual route, figured in a collision
with another bus owned by Universal
Transport, Inc. (UTI). Among those injured
inside the CTC bus were: Romeo, a stow
away; Samuel, a pickpocket then in the
act of robbing his seatmate when the
collision occurred; Teresita, the bus driver’s
mistress who usually accompanied the
driver on his trips for free; and Uriel, holder
of a free riding pass he won in a raffle held
by CTC.
(a) Will a suit for breach of contract of
carriage filed by Romeo, Samuel, Teresita,
and Uriel against CTC prosper? Explain.
(3%)
(b) Do Romeo, Samuel, Teresita, and Uriel
have a cause of action for damages
against UTI? Explain. (3%)

(c) What, if any, are the valid defenses that

CTC and UTI can raise in the respective
actions against them? Explain. (3%) (Only
latter C was answered)
A: Valid defenses of CTC and UTI:

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