TORTS AND DAMAGES REVIEWER Degree of proof required to show negligence:
Preponderance of evidence. Burden of proof rests on
ART. 2176 Whoever by act of omission causes
damage to another, there being fault of negligence,
is obliged to pay for the damages done. Such fault or
negligence, if there is no pre-existing contractual
relation between the parties, is called and quasi-
delict. (culpa-aquiliana)
-fault or negligences covers not only acts
not punishable by law but also acts criminal in
character, whether intentional and voluntary or
negligent.
Elements of quasi-delict:
1. Negligent act or omission of the defendant;
2. Damages to the plaintiff;
3. Connection of cause and effect between such
negligence and damages;
4. No pre-existing contractual relationship between
the parties.
Elements for cause of action based on quasi-delict: LAPD
1. A legal right of the plaintiff and a correlative
obligation of the defendant to respect such right;
2. An act or omission of the defendant violative of
said right;
3. The defendant’s act must be the proximate cause
of the violation of plaintiff’s right; and
4. Damages are incurred as a result of the violation.
Injury- illegal invasion of the legal right.
Loss- hurt of harm which resulted from the injury.
Damages- recompense or compensation awarded for
the damage suffered.
Principle of damnum absque injuria- while the act
may have caused damage to another, yet the actor is
not liable if there was no violation of a legal right.
Tort- includes negligent and intentional criminal acts.
Culpa Aquiliana- negligent acts.
Negligence as a source of obligations- not growing
out of pre-existing duties of the parties to one
another. Subject to Arts. 2176-2180.
Negligence in the performance of contractual
obligations- where relations already formed give rise
to duties, whether springing from contract or quasi-
contract, then the breaches of those duties are
subject to Art. 1170, 1172 and 1173.
-for one to be liable for tort even if there
is a contract, there must be an act independent of
the contract that violates the contract.
the plaintiff to establish that the proximate cause of
his injury was the negligence of the defendant.
-Liability of employer under Art. 2180 is direct and
immediate. It is not conditioned upon prior recourse
against the negligent employee and a prior showing
of the insolvency of such employee. (Employer must
prove the exercise of the diligence of a good father
of a family to be free from liability).
Test for determining negligence: Would a prudent
man in the position of the person to whom
negligence is attributed foresee harm to the person
injured as a reasonable consequence of the course
about to be pursued?
-Reasonable prudent man- he who, in the
performance of an act should foresee the
consequences of the same.
- one who is
not omniscient of the future. Rather, one who takes
precautions against any harm when there is
something before him to suggest or warn of the
danger, or to foresee it.
-Doctrine of Last Clear Chance- where both parties
are guilty of negligence, but the negligent act of one
succeeds that of the other by an appreciable
opportunity to avoid the impending harm and fails to
do so, is chargeable with the consequences, without
reference to the prior negligence of the other party.
-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.
-the plaintiff initially is the negligent party,
but there is the defendant who could have
prevented the occurrence of the accident, hence, he
alone should be blamed and be held liable. The
subsequent negligence of the defendant becomes
the immediate or proximate cause of the accident
which intervenes between the accident and the
negligence of the plaintiff, thus making the
defendant liable to the plaintiff.
-the doctrine applies only in a suit between
owners and drivers of colliding vehicles and does not
arise where a passenger demands responsibility
from the carrier to enforce its contractual
obligations.
-not extended to joint tortfeasors.
 -rule under substantial factor test- if the
actor’s conduct is a substantial factor in bringing
about harm to another, the fact that the actor
neither foresaw nor should have foreseen the extent
of the harm or the manner in which it occurred does
not prevent him from being liable.
-Applies to vehicular accidents and to a
bank.
-Do not apply on emergency rule.
Emergency rule- one who 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, 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.
Proximate cause- the cause which, in natural and
continuous sequence, unbroken by any efficient
intervening cause, produces injury, and without
which the result would not have occurred.
Negligence plus fortuitous event equals liability- a
person, to be exempted from liability due to
fortuitous event, the latter must be the proximate
and only cause of the loss or damage. If coupled with
negligence, then, the defendant cannot be exempt
from liability.
Contractual Tort
-Gen. Rule: if there is a contract, there can
be no liability for tort since one of the requisites for
liability for tort is that there must be no pre-existing
contractual relationship.
-EXCPT: If there is an act that
violates the contract independently of the contract,
there can be liability tort.
-Examples:
Art. 1567: The vendee’s
remedies against a vendor with
respect to the warranties against
hidden defects of or encumbrances
upon the thing sold: the vendee
may either withdraw from the
contract or demand a only a nexus between the particular act or omission
proportionate reduction of the
price, with damages in either case.
Art. 1170: Those guilty of
fraud, negligence, or delay in the
performance of their obligations
and those who in any manner
contravene the tenor thereof are
liable for damages.
Res Ipsa Loquitur- the thing speaks for itself.
Presumption of negligence of a party where there is
no direct evidence to prove negligence arising from
the facts or circumstances accompanying an injury.
Presumption is merely rebuttable and not
conclusive.
- Where the thing which
caused the injury complained to is shown to be
under the management of defendant or his
servant/s and the accident is such as in the ordinary
course of things does not happen if those who have
its management or control use proper care, it affords
reasonable evidence, in the absence of explanation
by defendant, that the accident arose from want of
care.
- It is considered as merely
evidentiary. It relieves a plaintiff from the burden of
producing specific proof of negligence. It allows the
plaintiff to present along with the proof of the
accident, enough of the attending circumstances to
invoke the doctrine, creating an inference or
presumption of negligence, and to thereby place on
the defendant the burden of going forward with the
proof.
-Requisites for the application of the
doctrine of Res Ipsa Loquitur:
1. The accident is of a kind which ordinarily does not
occur in the absence of someone’s negligence.
2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants; or
3. The possibility of contributing conduct which
would make the plaintiff responsible is eliminated.
-The burden to prove the absence of
presumptive negligence rests on the defendant.
-The doctrine, when applied to medical
malpractice, expert medical testimony to prove that
a physician has done a negligent act or that he has
deviated from the standard medical procedure is
dispensed because the injury itself provides the
proof of negligence. Patient is required to prove
complained of and the injury sustained.
-May not be applied in a suit
against a physician or surgeon which involves the
merits of a diagnosis or of a scientific treatment.
Applied only to situations in malpractice cases where
a layman is able to say, as a matter of common
knowledge and observation, that the consequences
of professional care were not as such as would
ordinarily have followed if due care had been
exercised.
Medical Negligence:
-Elements
1. Patient must prove that a health care
provider, either failed to:
a. Do something which a reasonably
prudent health care provider would have done; or
b. That he did something that a reasonably
prudent provider would not have done; and
2. That the failure or action caused injury to the
patient.
-Whether the doctor’s actions in fact caused
the harm to the patient and
-Whether these were the proximate cause
of the patient’s injury.
-Evidence:
1. Evidence as to the recognized standards of the
medical community in the particular kind of cases
and
2. A showing that the physician in question
negligently departed from this standard of his
treatment.
Doctrine of Informed Consent- a physician has a
duty to disclose what a reasonably prudent physician
in the medical community in the exercise of
reasonable care would disclose to his patient as to
whatever grave risks of injury might be incurred
from the proposed course of treatment, so that a
patient, exercising ordinary care for his own welfare,
and faced with a choice of undergoing the proposed
treatment, or alternative treatment, or none at all,
may intelligently exercise his judgment by
reasonably balancing the probable risks against the
probable benefits.
-physician is not obliged to discuss relatively
minor risks inherent in common procedures when it
is common knowledge that such risks inherent in
procedure of very low incidence.
TEST: whether information is material,
materiality to the patient’s decision.
-Elements of malpractice based upon the
Doctrine of Informed Consent:
1. The physician had a duty to disclose material risks;
2. He failed to disclose or inadequately disclosed
those risks;
3. As a direct and proximate result of the failure to
disclose, the patient consented to treatment she
otherwise would not have consented to; and
4. Plaintiff was injured by the proposed treatment.
Defenses in quasi-delict cases:
1. Principle of damnum absque injuria – damage
without injury.
- To Warrant recovery of damages, there
must be both a right of action for a legal wrong
inflicted by the defendant and a damage resulting to
the plaintiff.
-Wrong without damage, or damage
without wrong, does not constitute a cause of
action.
-Requisites for violation of Principle of
Abuse of Right under Art. 21:
1. The defendant should have acted in a
manner that is contrary to morals, good customs or
public policy;
2. The acts should be willful; and
3. There was damages or injury to the
plaintiff.
-Gen. Rule: There is no cause of action for
acts done by one person upon his own property in a
lawful and proper manner, although such acts
incidentally cause damage or an unavoidable loss to
another, as such damage or loss is damnum absque
injuria.
: the proper exercise of a lawful
right cannot constitute a legal wrong for which an
action will lie, although the act may result in damage
to another, for no legal right has been invaded.
Force majeure:
-Art. 1174: x x x events which could not be
foreseen, or which, though foreseen, were
inevitable.
-Instances where there is liability
even in case of fortuitous event:
-there is liability in the following
provisions of the law, because while there is
fortuitous event, it is not the proximate and only
cause as it is coupled with human intervention. To
exempt a person from liability, the fortuitous event
must be the proximate and only cause.
1. Art. 1942. The bailee is liable for the loss
of the thing, even if it should be through a fortuitous
event:
(1) If he devotes the thing to any purpose
different from that for which it has been loaned;
 (2) If he keeps it longer than the period
stipulated, or after the accomplishment of the use
for which the commodatum has been constituted;
(3) If the thing loaned has been delivered
with appraisal of its value, unless there is a
stipulation exemption the bailee from responsibility
in case of a fortuitous event;
(4) If he lends or leases the thing to a third
person, who is not a member of his household;
(5) If, being able to save either the thing
borrowed or his own thing, he chose to save the
latter. (1744a and 1745)
2. Art. 1979. The depositary is liable for the
loss of the thing through a fortuitous event:
(1) If it is so stipulated;
(2) If he uses the thing without the
depositor's permission;
(3) If he delays its return;
(4) If he allows others to use it, even though
he himself may have been authorized to use the
same. (n)
3. Art. 2147. The officious manager shall be
liable for any fortuitous event:
(1) If he undertakes risky operations which
the owner was not accustomed to embark
upon;
(2) If he has preferred his own interest to
that of the owner;
(3) If he fails to return the property or
business after demand by the owner;
(4) If he assumed the management in bad
faith. (1891a)
4. Art. 2148. Except when the management
was assumed to save property or business from
imminent danger, the officious manager shall be
liable for fortuitous events:
(1) If he is manifestly unfit to carry on the
management;
(2) If by his intervention he prevented a
more competent person from taking up the
management. (n)
-Reason for non-liability: Actus dei nemini nocet or
the act of God does injury to no one.
-Mere difficulty in foreseeing an event is not a
ground to absolve.
-Requisites of force majeure:
1. The cause of the breach of the obligation
must be independent of the human will;
2. The event must be either unforeseeable
or unavoidable;
3. The event must be such as to render it
impossible for the debtor to fulfill his obligation in a
normal manner; and
4. The debtor must be free from any
participation in, or aggravation of the injury to the
creditor.
-Common carriers: extraordinary diligence is
required. There is presumption of negligence which
may be negated only with the showing that the
common carrier observed extraordinary diligence.
-Negligence of other party: defense known as
shifting of responsibility from the defendant to the
plaintiff. The burden of proof lies in the defendant.
-Contributory negligence- defense which not exempt
the defendant totally from liability but merely
reduces it.
-Diligence in selection and supervision- the
negligence of an employee gives rise to the
presumption that his employer is negligent in the
selection and supervision of their employee.
-Selection: Examine license, qualifications,
experience and record of service.
-Supervision: Formulation of rules and
regulations for guidance of employees and the
issuance of proper instructions as well as actual
implementation and monitoring of consistent
compliance with the rules.
Civil Liability arising from negligence and crime:
ART. 2177: Responsibility for fault and negligence
under the preceding articles is entirely separate and
distinct from the civil liability from negligence under
the Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of the
defendant.
Effect of acquittal on the criminal case:
-Gen. Rule: the same shall not bar the filing
of a subsequent civil action for damages.
Reasons:
1. The quantum of evidence to obtain the
guilt of the accused is beyond reasonable doubt
while in civil liability, only preponderance of
evidence.
 -EXCPT: the judgment of acquittal
extinguishes the civil liability of the accused only
when it includes a declaration that the facts from
which the civil liability might arise did not exist.
Effect of the Rules of Court:
Rule 3, Section 1: When a criminal action is
instituted, the civil action for recovery of civil liability
is impliedly instituted with the criminal action, unless
the offended party waives the civil action, reserves
his right to institute it separately, or institutes the
civil action prior to the criminal action.
Provisions applicable to quasi-delicts:
Art. 1172. Responsibility arising from negligence in
the performance of every kind of obligation is also
demandable, but such liability may be regulated by
the courts, according to the circumstances. (1103)
Art. 1173. The fault or negligence of the obligor
consists in the omission of that diligence which is
required by the nature of the obligation and
corresponds with the circumstances of the persons,
of the time and of the place. When negligence shows
bad faith, the provisions of Articles 1171 and 2201,
paragraph 2, shall apply.
If the law or contract does not state the diligence
which is to be observed in the performance, that
which is expected of a good father of a family shall
be required. (1104a)
2. Force Majeure- of act of man like war, armed
invasion, attack of bandits, government action,
robbery and the like.
ART. 2179. When the plaintiff’s own negligence is
the immediate and proximate cause of his injury, he
cannot recover damages. But if his negligence was
only contributory, the immediate and proximate
cause being the defendant’s lack of due care, the
plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded.
Proximate cause:
That adequate and efficient causes which in
the natural order of events and under the particular
circumstances surrounding the case would naturally
produce the event.
Negligence is the failure to observe, for the
protection of the interest of another person, that
degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other
person suffers injury.
Contributory negligence is conduct on the part of
the injured party, contributing as a legal cause to the
harm he has suffered, which falls below the standard
which he is required to conform for his own
protection.

Art. 1174. Except in cases expressly specified by the

law, or when it is otherwise declared by stipulation,
or when the nature of the obligation requires the
assumption of risk, no person shall be responsible
for those events which could not be foreseen, or
which, though foreseen, were inevitable. (1105a)

NOTE: One who negligently creates a dangerous

condition cannot escape liability for the natural and
probable consequences thereof, although the act of
a third person, or an act of God for which he is not
responsible, intervenes to precipitate the loss.

Fortuitous event: An unexpected event or act of God

which could neither be foreseen nor resisted.
-Kinds:
1. Act of God or convulsions of nature such as
lightning, earthquake, storms, flood or fire of natural
origins and the like; and