TORTS AND DAMAGES

I. TORTS

TORT
 An unlawful violation of private right, not created by contract, and which gives rise to an action
for damages.
 It is an act or omission producing an injury to another, without any previous existing lawful
relation of which the said act or omission may be said to be a natural outgrowth or incident.

 An unborn child is NOT entitled to damages. (Geluz vs. CA, 2 SCRA 802)
 Defendants in tort cases can either be natural or artificial beings. Corporations are civilly liable
in the same manner as natural persons.

 Any person who has been injured by reason of a tortious conduct can sue the tortfeasor.
 The primary purpose of a tort action is to provide compensation to a person who was injured by
the tortious conduct of the defendant.

 Preventive remedy is available in some cases.

 Classes of Torts:
Intentional Torts
Negligent Torts
Strict Liability

Intentional Torts
 Include conduct where the actor desires to cause the consequences of his act or believes that
the consequences are substantially certain to result from it.
 They are found in Chapter 2 of the Preliminary Title of the NCC entitled “Human Relations”.
Although this chapter covers negligent acts, the torts mentioned herein are mostly intentional in
nature or torts involving malice or bad faith.

Principle of Abuse of Rights (Art. 19)

 Elements:
Legal right or duty;
The right or duty is exercised in bad faith; and
For the sole intent of prejudicing or injuring another.
 Example: if the principal unreasonably terminated an agency agreement for selfish reasons.
(Valenzuela vs. CA, 190 SCRA 1)

Article 20
 Speaks of the general sanction for all other provisions of law which do not especially provide for
their own sanction.

Acts contra bonus mores (Art. 21)

 Elements:
Act which is legal;
The act is contrary to morals, good customs, public order or public policy; and
The act is done with intent to injure.
 Kinds:
Breach of promise to marry
Seduction without breach of promise to marry
Sexual assault
Desertion by a spouse
Trespass and deprivation of property
Abortion and wrongful death
Illegal dismissal
Malicious prosecution
Public humiliation

 Under Art. 21, damages are recoverable even though no positive law was violated.

Note: An action can only prosper when damage, material or otherwise, was suffered by the plaintiff.
An action based on Arts. 19-21 will be dismissed if the plaintiff merely seeks “recognition.”

Torts against human dignity (Art. 26)

 Types:
Violation of the right of privacy
Intrusion
 It is not limited to cases where the defendant physically trespassed into another’s
property. It includes cases when the defendant invades one’s privacy by looking from
outside (Example: “peeping-tom”).
Publication of private facts
 Requisites:
Publicity is given to any private or purely personal information about a person;
Without the latter’s consent; and
Regardless of whether or not such publicity constitutes a criminal offense, like libel or
defamation, the circumstance that the publication was made with intent of gain or for
commercial and business purposes invariably serves to aggravate the violation of the
right.
 The interest sought to be protected is the right to be free from unwarranted publicity, from
the wrongful publicizing of the private affairs and activities of an individual which are outside
the realm of legitimate public concern.
 The publication of facts derived from the records of official proceedings which are not
otherwise declared by law as confidential, cannot be considered a tortious conduct.

Publicity which places a person in a false light in the public eye

 The interest to be protected in this tort is the interest of the individual in not being mad to
appear before the public in an objectionable false light or false position.
 May be committed by the media by distorting a news report.

Commercial appropriation of likeness

 The unwarranted publication of a person’s name or the unauthorized use of his
photograph or likeness for commercial purposes is an invasion of privacy.
 With respect to celebrities, however, the right of publicity is often treated as a separate
right that overlaps but is distinct from the right of privacy. They treat their names and likeness
as property and they want to control and profit therefrom.

 Public Figure - A person, who by his accomplishments, fame or mode of living or by adopting a
profession or calling which gives the public a legitimate interest in his doings, his affairs and his
character.
 Public figures, most especially those holding responsible positions in government enjoy a more
limited right to privacy compared to ordinary individuals.

Interference with family

 The gist of the tort is an interference with one spouse’s mental attitude toward the other and
the conjugal kindness of marital relations resulting in some actual conduct which materially
affects it.
 It extends to all cases of wrongful interference in the family affairs of others whereby one
spouse is induced to leave the other spouse or conduct himself or herself that the comfort of
married life is destroyed.
Intriguing to cause alienation

Vexation and Humiliation

 Discrimination against a person on account of his physical defect, which causes emotional
distress, may result in liability on the part of the offending party.

Negligent Torts
 Involve voluntary acts or omissions which result in injury to others without intending to cause the
same or because the actor fails to exercise due care in performing such acts or omissions.

NEGLIGENCE
 The omission of that degree of diligence which is required by the nature of the obligation and
corresponding to the circumstances of persons, time and place. (Article 1173)
 Kinds:
Culpa Contractual (contractual)
 Governed by CC provisions on Obligations and Contracts, particularly Arts. 1170 to 1174.
Culpa Aquiliana (quasi-delict)
 Governed mainly by Art. 2176.
Culpa criminal (criminal)
 Governed by Art. 365 of the Revised Penal Code.

 See Tables.

Note: The 3 kinds of negligence furnish separate, distinct, and independent bases of liability or
causes of action.

Culpa Contractual Culpa Aquiliana

The foundation of the liability of the defendant It i s a se p a ra te so u rce o f o b l i g a ti o n
is the contract independent of contract

Culpa Aquiliana Crime

Only involves private concern
The Civil Code by means of indem-nification
merely repairs the damage
Includes all acts in which any kind of fault or
negligence intervenes
Liability is direct and primary in quasi-delict
Affect the public interest
The Revised Penal Code punishes or corrects
criminal act
Punished only if there is a penal law clearly
covering them
Liability of the employer of the actor-employee
is subsidiary in crimes

Tests of Negligence
Did the defendant in doing the alleged negligent act use the reasonable care and caution which an
ordinarily prudent person would have used in the same situation?
 If not then he is guilty of negligence.
Could a prudent man, in the case under consideration, foresee harm as a result of the course
pursued?
 If so, it was the duty of the actor to take precautions to guard against harm

 The determination of negligence is a question of foresight on the part if the actor.

 Negligence is a conduct that creates an undue risk of harm to others.

Calculation of Risk
 Interests are to be balanced only in the sense that the purposes of the actor, the nature of his act
and the harm that may result from action or inaction are elements to be considered.

Circumstances to determine negligence and/or forseeability of negligence:

Time
 Place
Emergency
 Emergency rule
GENERAL RULE: An individual who suddenly finds himself in a situation of danger and is
required to act without much time to consider the best means that may be adopted to avoid
the impending danger is not guilty of negligence if he fails to undertake what subsequently
and upon reflection may appear to be a better solution.
EXCEPTION: When the emergency was brought by the individual’s own negligence
(Valenzuela vs. CA 253 SCRA 303).
Gravity of Harm to be avoided
Alternative Course of Action
 If the alternative presented to the actor is too costly, the harm that may result may be still
be considered unforeseeable to a reasonable man.
Social value or utility of activity
Person exposed to the risk
 A good father of a family (pater familias) is the standard of conduct used in the
Philippines. It is a man of ordinary intelligence and prudence or ordinary reasonable
prudent man.

Attributes of a Good Father of a Family:

A reasonable man is deemed to have knowledge of facts that a man should be expected to know
based on ordinary human experience (PNR vs. IAC, 217 SCRA 409).
A prudent man should also be expected to know the basic laws of nature and physics, like gravity,
etc.
The action of the child will not necessarily be judged according to the standard of an adult. But if
the minor is mature enough to understand and appreciate the nature and consequence of his
actions, he will be considered negligent if he fails to exercise due care and precaution in the
commission of such acts.
 The law fixes no arbitrary age at which a minor can be said to have the necessary
capacity to understand and appreciate the nature and consequence of his acts. (Taylor vs.
Meralco, 16 Phil 8)
 Applying the provisions of the Revised Penal Code, Judge Sangco takes the view that a
child who is 9 or below is conclusively presumed to be incapable of negligence. In the other
hand, if the child is above 9 years but below 15, there is a disputable presumption of
absence of negligence.
An expert will not be judged based on what a non-expert can foresee.
The rule regarding experts is applicable not only to professionals who have undergone formal
education.
GENERAL RULE: Mere intoxication is not negligence, nor does the mere fact of intoxication
establish want of ordinary care. But it may be one of the circumstances to be considered to prove
negligence.
EXCEPTION: Under Art. 2185 of the Civil Code, it is presumed that a person driving a motor
vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.
The insanity of a person does not excuse him or his guardian from liability based on quasi-delict.
 Bases:
Where one of two innocent persons must suffer a loss, it should be borne by the one who
occasioned it
To induce those interested in the estate of the insane person to restrain and control him
The fear that an insanity would lead to false claims of insanity and avoid liability.
GENERAL RULE: Violation of statutory duty is negligence per se. (Cipriano vs. CA, 263 SCRA
711)
EXCEPTION: When unusual conditions occur and strict observance may defeat the purpose of
the rule and may even lead to adverse results.
Compliance with a statute is not conclusive that there was no negligence.
 Example: A defendant can still be held liable for negligence even if he can establish that
he was driving below the speed limit. Compliance with the speed limit is not conclusive that
 he was not negligently driving his car.
10. GENERAL RULE: The owner has no duty to take reasonable care towards a trespasser for
his protection or even to protect him from concealed danger.
EXCEPTIONS:
Visitors and tolerated possession
Doctrine of Attractive Nuisance
 One who maintains on his premises dangerous instrumen-talities or appliances of a
character likely to attract children in play, and who fails to exercise ordinary care to prevent
children from playing therewith or resorting thereto, is liable to a child of tender years who is
injured thereby, even if the child is technically a trespasser in the premises.

 The state of mind of the actor is not important; good faith or use of sound judgment is immaterial.
The existence of negligence in a given case is not determined by reference to the personal
judgment but by the behavior of the actor in the situation before him (Picart vs Smith)

Gross Negligence - Negligence where there is “want of even slight care and diligence.”

PROXIMATE CAUSE
 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.
 Tests:
1. Causation test
Cause in Fact – the defendant’s negligence is the cause without which the injury would not
have taken place.
Substantial Factor Test – to hold the defendant liable, it is sufficient if his negligent conduct
was a substantial factor in bringing about the injury.
2. Policy test
Foreseeabilty Test
Natural and Probable Consequence Test
Ordinary and Natural or Direct Consequence Test
Hindsight Test

Principle of Concurrent Cause

 Where the concurrent or successive negligent acts or omissions of two or more persons,
although acting independently, are in combination the direct and proximate cause of a single injury
to a third person, and it is impossible to determine what proportion each contributed to the injury,
either of them is responsible for the whole injury, even though his act alone might not have caused
the entire injury.

Joint Tortfeasors
 All the persons who command, instigate, promote, encourage, advise, countenance, cooperate
in, aid or abet the commission of a tort, or who approve of it after is done, if done for their benefit.
 They are each liable as principals, to the same extent and in the same manner as if they had
performed the wrongful acts themselves.
 They are solidarily liable; and thus, the person injured may sue all of them or any number less
than all.

Proof of Negligence
A. Presumptions
In motor vehicle mishaps, the owner is presumed negligent if he was in the vehicle and he could
have used due diligence to prevent the misfortune.
It is disputably presumed that a driver was negligent if he had been found guilty of reckless driving
or violating traffic regulations at least twice for the next preceding two months.
The driver of a motor vehicle is presumed negligent if at the time of the mishap, he was violating
any traffic regulation.
GENERAL RULE: Prima facie presumption of negligence of the defendant arises if death or
injury results from his possession of dangerous weapons or substance.
EXCEPTION: When such possession or use is indispensable to his occupation or business.
GENERAL RULE: Presumption of negligence of the common carrier arises in case of loss,
destruction or deterioration of the goods, or in case of death or injury of passengers.
EXCEPTION: Upon proof of exercise of extraordinary diligence.

B. Res Ipsa Loquitur

 “The thing or transaction speaks for itself.”
 It is a rule of evidence peculiar to the law of negligence which recognizes that prima facie
negligence may be established in the absence of direct proof, and furnishes a substitute for
specific proof of negligence.
 Requisites:
The accident was of a kind which ordinarily does not occur in the absence of someone’s
negligence;
The instrumentality which caused the injury was under the exclusive control and management
of the person charged with negligence; and
The injury suffered must not have been due to any voluntary action or contribution on the part of
the person injured; absence of explanation by the defendant.

Quasi-Delict
1. Whoever by act or omission causes damage to another, there being fault or negligence is
obliged to pay for the damage done. (Art. 2176)
 Elements:
Negligent or wrongful act or omission;
Damage; and
Causal relation between such negligence or fault and damage.
2. Torts with Independent Civil Action (Justice Caguioa’s view)
Violation of civil and political rights (Art. 32)
Defamation, Fraud, and Physical injuries (Art. 33)
Neglect of duty by police officers (Art. 34)

Defenses in Negligence Cases

Complete – completely bars recovery
Partial – mitigates liability

 Death of the defendant does not extinguish the obligation based on quasi-delict. It is no defense
at all.

1. Prescription
 An action based on quasi-delict prescribes in four years from the date of the accident. (Art. 1146)

Relations Back Doctrine

 An act done at one time is considered by fiction of law to have been done at some antecedent
period. (Allied Banking Corp vs. CA, 1989)
 Example: A doctor negligently transfused blood to a patient that was contaminated with HIV. If
the effect became apparent only after five (5) years, the four (4) year prescriptive period should
commence only when it was discovered.

2. Fortuitous Event
 Essential requisites:
The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply
with his obligation, must be independent of the human will;
It must be impossible to foresee the event which constitutes the “caso fortuito,” or if it can be
foreseen, it must be impossible to avoid;
The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a
normal manner; and
The obligor must be free from any participation in the aggravation of the injury resulting to the
creditor.
 GENERAL RULE: It is a complete defense.
EXCEPTION: It is merely a partial defense in case of Art. 2215(4). (Aquino, Torts and Damages)

3. Assumption of Risk
 Volenti non fit injuria: One is not legally injured if he has consented to the act complained of or
was willing that it should occur.
 It is a complete defense.
 Elements:
The plaintiff must know that the risk is present;
He must further understand its nature; and that
His choice to incur it is free and voluntary.
 Kinds:
Express waiver of the right to recover
 There is assumption of risk if the plaintiff, in advance has expressly waived his right to
recover damages for the negligent act of the defendant
 It should be noted, that the waiver contemplated here is the waiver of the right to recover
before the negligent act was committed. It cannot be stipulated in the contract that one of the
parties therein is barred from claiming damages based on negligence.
Implied assumptions
A person who, knowing that he is exposed to a dangerous condition voluntarily assumes the
risk of such dangerous condition may not recover from the defendant who maintained such
dangerous conditions.
 Example: A person who maintained his house near a railroad track assumes the usual
dangers attendant to the operation of a locomotive. (Rodrigueza vs. Meralco)
Contractual relations
 There may be implied assumption of risk if the plaintiff entered into a relation with the
defendant. In this case, the plaintiff may be found to accept and consent to it.
Dangerous Activities
 Persons who voluntarily participate in dangerous activities assume the risks which are
usually present in such activities.
 Example: A professional athlete is deemed to assume the risks of injury to their trade.
Defendant’s negligence
 When the plaintiff is aware of the risk created by the defendant’s negligence, yet he
voluntarily decided to proceed to encounter it, there is an implied admission.
 Example: If the plaintiff has been supplied with a product which he knows to be unsafe, he
is deemed to have assumed the risk of using unsafe product.

4. Contributory Negligence
 Conduct on the part of the injured party contributing as a legal cause to the harm he has suffered
which falls below the standard to which he is required to conform for his own protection.
 The court is free to determine the extent of the mitigation of the defendant’s liability depending
upon the circumstances.
 It is a partial defense resulting in the mitigation of liability of the defendant.

Comparative Negligence
 The relative degree of negligence of the parties is considered in determining whether and to
what degree, either should be responsible for his negligence – apportionment of damages.

Imputed Contributory Negligence

 Negligence is imputed if the actor is different from the person who is being made liable. It is
applicable if the negligence was on the part of the person for whom the plaintiff is responsible, and
especially, by negligence pf an associate in the transaction where he was injured

5. Doctrine of Last Clear Chance or Discovered Peril

 The contributory negligence of the party injured will not defeat the claim for damages if it is
shown that the defendant might, by the exercise of reasonable care and prudence, have avoided
the consequences of the negligence of the injured party.
Note: In case of collision, it applies in a suit between the owners and drivers of colliding vehicles
but not where a passenger demands responsibility from the carrier to enforce its contractual
obligations.

Emergency Rule or Sudden Peril Doctrine

 Where one suddenly finds himself in a place of danger and is required to act without time to
consider the best means that may be adopted to avoid the impending danger and is not guilty of
negligence if he fails to adopt what subsequently and upon reflection may appear to have been a
better method unless the emergency in which he finds himself is brought about by his own
negligence.

7. Involuntariness
 It is a complete defense in quasi-delict cases and the defendant is therefore not liable if force
was exerted on him. (Aquino, Torts and Damages)
 Example: When the defendant was forced to drive his vehicle by armed men. He was, at pain of
death, forced to drive at a very fast clip because the armed men were escaping from the policemen.
The defendant cannot be held liable, if a bystander is hit as a consequence.

VICARIOUS LIABILITY
 A person is not only liable for torts committed by himself, but also for torts committed by others
with whom he has a certain relation or for whom he is responsible. (Art. 2180)
 Exercise of diligence of a good father of a family to prevent damage is a defense.

Persons vicariously liable: (FGOEST)

Father, or in case of death or incapacity, mother
 For damage caused by:
minor children
living in their company
 This has already been modified by Art. 221 of the Family Code to the extent that the
alternative qualification of the liability of the father and the mother has been removed.

Notes:
The basis of liability for the acts or omissions of their minor children is the parental authority that
they exercise over them.
The liability is not limited to parents, the same is also imposed on those exercising substitute
and special parental authority, i.e., guardian.
The liability is present only both under Art 2180 of the NCC and Art 221 of the Family Code if the
child is living in his parents’ company.
Parental authority is not the sole basis of liability. A teacher in charge is still liable for the acts of
their students even if the minor student reaches the age of majority.
The parents or guardians can still be held liable even if the minor is already emancipated
provided that he is below 21 years of age.
Parents and other persons exercising parental authority can escape liability by proving that they
observed all the diligence of a good father of a family to prevent damages. (Art. 2180)
The burden of proof rests on the parents and persons exercising parental authority.

Guardian
 For damage caused by:
minors or incapacitated persons
under their authority
living in their company

Owners and managers of establishments

 For damage caused by:
their employees
in the service of the branches in which they are employed, or
on the occasion of their functions

Employers
 For damages cause by:
employees and household helpers
acting within the scope of their assigned tasks
even if the employer is not engaged in any business or industry
 Notes:
Liability of the employer can be established by proving the existence of an employer-employee
relationship with the actor and the latter caused the injury while performing his assigned task
or functions.
The vicarious liability attaches only when the tortuous conduct of the employees relates to or is
in the course of his employment
While the employer incurs no liability when an employee’s conduct, act or omission is beyond
the range of employment, a minor deviation from the assigned task of an employee, however
does not affect the liability of an employer. (Valenzuela vs. CA, 253 SCRA 303)

State
 For damage caused by:
a special agent
not when the damage has been caused by the official to whom the task done properly pertains
 Public officers who are guilty of tortuous conduct are personally liable for their actions.

Teachers or heads of establishments of arts and trades

 For damage caused by:
pupils and students or apprentices
in their custody
 Notes:
Applies also to teachers of academic institutions.
Liability attaches to the teacher-in-charge.
The school itself is now solidarily liable with the teacher-in-charge.
Whenever the school or teacher is being made liable, the parents and those exercising
substitute parental authority are not free from liability because Art. 219 of the Family Code
expressly provides that they are subsidiarily liable.
Art. 2180 makes teachers and heads liable for acts of students and apprentices whether the
latter are minors or not.
GENERAL RULE: The teacher-in-charge is liable for the acts of his students. The school and
administrators are not liable.
EXCEPTION: It is only the head of the school, not the teacher who is held liable where the
injury is caused in a school of arts and trade.
The liability of the teacher subsists whether the school is academic or non- academic.
Liability is imposed only if the pupil is already in the custody of the teacher or head. The student
is in the custody of the school authorities as longs as he is under the control and influence of
the school and within its premises whether the semester had not yet begun or has already
ended

 The victim of negligence is likewise required to exercise due care in avoiding injury to himself.

C. Strict Liability
 When the person is made liable independent of fault or negligence upon submission of proof of
certain facts.
 Types:
1. Animals
GENERAL RULE: The possessor of an animal or whoever may make use of the same is
responsible for the damages which it may cause although it may escape or be lost.
EXCEPTION: When the damage was caused by force majeure or by the person who suffered the
damage. (Art. 2183)
 If the acts of a third person cannot be foreseen or prevented, then the situation is similar to that of
force majeure and the possessor is not liable. (Francisco, Torts and Damages)
 Art. 2183 is applicable whether the animal is domestic, domesticated, or wild.

2. Falling objects
 The head of a family that lives in a building or a part thereof is responsible for damages caused
by things thrown or falling from the same. (Art. 2193)
 The term “head of the family” is not limited to the owner of the building, and it may even include
the lessee thereof. (Dingcong vs. Kanaan, 72 Phil 14)

3. Liability of employers
 Art. 1711 of the NCC imposes an obligation on owners of enterprises and other employers to
pay for the death or injuries to their employees.
 Liability is strict because it exists even if the cause is purely accidental.
 If the mishap was due to the employee’s own notorious negligence, or voluntary act or
drunkenness, the employer shall not be liable for compensation.
 When the employee’s lack of due care contributed to his death or injury, the compensation shall
be equitably reduced.
 If the death or injury is due to the negligence of a fellow-workman the latter and the employer
shall be solidarily liable for compensation.
 If a fellow-worker’s intentional or malicious act is the only cause of the death or injury, the
employer shall not be answerable unless it should be shown that the latter did not exercise due
diligence in the selection or supervision of the plaintiff’s fellow-worker.

Nuisance
 Any act, omission, establishment, business, condition of property, or anything else which:
Injures or endangers the health or safety of others;
Annoys or offends the senses;
Shocks, defies or disregards decency or morality;
Obstructs or interferes with the free passage of any public highway or street, or any body
of water; or
Hinders or impairs the user of property. (Art. 694)
 There is strict liability on the part of the owner or possessor of the property where a nuisance is
found because he is obliged to abate the same irrespective of the presence or absence of fault or
negligence.
 Every successive owner or possessor of property who fails or refuses to abate a nuisance in
that property started by a former owner or possessor is liable therefore in the same manner as
the one who created it. (Art. 686)

5. Product liability by manufacturers

 Manufacturers and processors of foodstuffs, drinks, toilet articles and similar goods shall be
liable for death or injuries caused by any noxious or harmful substances used, although no
contractual relation exists. (Art. 2187)

Other cases of liability without fault:

Proprietor of a building or structure, for damages resulting from its total or partial collapse, if it
should be due to lack of necessary repairs. .
Breach of implied warranties.
Consumer Act (R.A. 7394) – any Filipino or foreign manufacturer, producer and importer,
independently of fault shall be liable for redress for damages caused to consumers by defects
resulting from:
design;
 manufacture;
construction;
assembly and erection;
formulas and handling and making up; or
presentation or packing of their products as well as for the insufficient or inadequate
information on the use and hazards thereof.
Even when an act or event causing damage to another’s property was not due to the fault or
negligence of the defendant, the latter shall be liable for indemnity if through the act or event he
was benefited. (Art. 23)

II. DAMAGES

DAMAGE
 The detriment, injury or loss which are occasioned by reason of fault of another in the property or
person.

DAMAGES
 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
violation of some rights.

DAMNUM ABSQUE INJURIA (Damage Without Injury)

 A person may have suffered physical hurt or injury, but for as long as no legal wrong has been
done, there is no liability.
 There can be damage without injury.

Injury Damage Damages

Legal invasion of a legal right Loss, hurt or harm which T h e r e c o m - p e n s e o r
results from the injury compensation awarded for the
damage suffered

 A complaint for damages is a personal action. (Baritua vs. CA, 267 SCRA 331)

 Proof of pecuniary loss is necessary to successfully recover actual damages from the defendant.
 The assessment of such damages, except liquidated ones, is left to the discretion of the court
according to the circumstances of each case.