Torts – August 30

Picart v. Smith, 37 Phil. 809 (1918)

Doctrine: (1)The law is that the person who has the last fair chance to avoid impending harm and fails to
do so is chargeable with the consequences, without reference to the prior negligence of the other party;
(2) The test of knowledge is this: Did the defendant, in doing the alleged negligent act use that reasonable
care and caution which an ordinarily prudent person would have used in the same situation? Conduct is
said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an
effect harmful to another was sufficiently probable to warrant his foregoing the conduct or guarding
against the consequences.

The court chose not to apply the doctrine of contributory negligence since the negligence of the plaintiff
is so remote compared to that of the defendant which is the immediate and determining cause of the
accident.
Facts:

Picart was riding his pony over the Carlatan Bridge at San Fenando, La Union. The plaintiff was then
violating road rules as he was on the wrong side of the road.

The defendant, Smith, who was riding an automobile approached from the other side of the bridge, at
the rate of about 10 or 12 miles per hour. He blew his horn to serve as a warning. Allegedly, Picart and
his pony were still on the wrong side of the bridge.

Argument of the Plaintiff: The plaintiff saw the automobile coming. Perturbed by the rapidity of things,
he pulled the pony closely up against the railing instead of crossing to the other side of the road, where
he should actually be at in the first place. He thought that he does not have sufficient time to go to the
proper side.

Argument of Defendant: Smith thought that Picart would move to the other side of the road. Hence, he
just continued. When he saw that the horse was apparently quiet, he continued to approach the horse
without slowing down or veering to the other side. When he got near, he realized that there was no way
that the horse would still cross to the other side. Hence, he veered to the right to avoid Picart and his
pony but in doing so, he got so close to the pony that resulted to it getting frightened. The horse suddenly
turned its body against the bridge with its head towards the railing.

The horse was struck and Picart was thrown somewhere with force.

CFI: The Court of First Instance absolved Smith from liability.

Other argument of the defendant: he subject matter of the action had been previously adjudicated in the
court of a justice of the peace. In this connection it appears that soon after the accident in question
occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace charging
the defendant with the infliction of serious injuries for which he was absolved. (The Court ruled that the
action of the justice of the peace in dismissing the criminal proceeding upon the preliminary hearing can
have no effect on the present civil proceedings.
Issues and Holding:
WON Smith is guilty of negligence thus making him liable for damages – YES
 As Smith started crossing the bridge, he had the right to assume that the horse and the rider
would pass over to the proper side; but, as he moved toward the center of the bridge, it was
demonstrated to his eyes that this would not be done. He must have perceived that it was too
Torts – August 30

late for the horse to cross with safety in front of the moving vehicle. It was no longer within the
power of the plaintiff to escape being run down by going to a place of greater safety.
 The control of the situation had been passed entirely to the defendant, and it was his duty to
either stop his car, or, seeing that there were no other persons on the bridge, to take the other
side and pass sufficiently far away from the horse to avoid the danger of collision.
 Smith ran straight until he was almost upon the horse, deceived by the fact that the horse had
not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk
that, if the animal in question was unacquainted with automobiles, he might get excited and
jump under the conditions which here confronted him. When the defendant exposed the horse
and the rider to this danger, he was negligent in the eye of the law.
 The law adopts the standard supposed to be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman law. The existence of negligence in a given case is not determined
by reference to the personal judgment of the actor in the situation before him. The law considers
what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and
prudence, and determines liability by that.
 The proper criterion for determining the existence of negligence in a given case is this: Conduct
is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen
that an effect harmful to another was sufficiently probable to warrant his foregoing conduct or
guarding against its consequences.
 Picart himself was not free from fault, for he was guilty of antecedent negligence in planting
himself on the wrong side of the road, but, as was already stated, Smith was also negligent; and,
in such case the problem is to discover which agent is immediately and directly responsible. It
will be noted that the negligent acts of the two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval.
Under these circumstances, the law is that the person who has the last fair chance to avoid
impending harm and fails to do so is chargeable with the consequences, without reference to the
prior negligence of the other party.
 Eventhough the plaintiff was at the wrong side of the road, the court chose not to apply the
doctrine of contributory negligence since the negligence of the plaintiff is so remote compared
to that of the defendant which is the immediate and determining cause of the accident.
Dispositive: From what has been said it results that the judgment of the lower court must be reversed,
and judgment is here rendered that the plaintiff recover of the defendant the sum of two hundred pesos
(P200), with costs of other instances. The sum here awarded is estimated to include the value of the
horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel, and
lawful interest on the whole to the date of this recovery. The other damages claimed by the plaintiff are
remote or otherwise of such character as not to be recoverable. So ordered.
Malcolm’s concurring opinion – Justice Malcolm highlights the fact that there can be no recovery if the
negligence of the plaintiff is concurrent with that of the defendant. In this case, however, the last clear
chance rule applies when the plaintiff’s negligence becomes a condition and not the proximate cause of
the injury.
Other notes:
- Bridge – length: 75 meters; witdth: 4.8 meters
Torts – August 30

- Hock:

United States v. Bonifacio, G.R. No. L-10563, March 2, 1916

Doctrine: Not every case in which one accidentally injures or kills another he is criminally liable therefor,
if at the moment he happens to be guilty of a violation of some petty regulation (reglamento). The injury
or death must have resulted from some "imprudence or negligence" (imprudencia o negligencia) on his
part. True it need only be slight negligence, if accompanied by a violation of the regulations, but the
relation of cause and effect must exist between the negligence or imprudence of the accused and the
injury inflicted. If it appears that the injury in no wise resulted from the violation of the regulations, or the
negligent conduct of the accused, he incurs no criminal liability under the provisions of this article.

Facts:
Bonifacio was an engineer and was conducting the heavy freight train one morning in Batangas. The train
had just rounded a curve when Bonifacio saw a man (Eligio Castillo) walking along the railroad track. The
former immediately blew his whistle twice; unknown to him, Castillo was a deaf-mute. Noticing that
Castillo did not step aside from the track, Bonifacio tried to slow down the engine, but did not succeed
in stopping in time to avoid running down the pedestrian, who, about that time, turned and attempted
to cross the track.

Bonifacio was charged in the trial court with homicide committed with reckless negligence.

Defense of the accused: When the accused engineer first saw the deceased, he was walking near the
track, in the same direction as that in which the train was running. The train, a heavy freight train, had
just rounded a curve, and the man in front was about 175 meters ahead of the engine. The engineer
immediately blew his whistle twice, and noticing, a few moments afterwards, that the man in front did
not respond to the warning by stepping aside from the track, he tried to slow down the engine, but did
not succeed in stopping in time to avoid running down the pedestrian. He did not attempt to stop his
engine when he first saw the man walking along the side of the track; but he claims that he did all in his
power to slow down a few moments afterwards, that is to say after he had blown his whistle without
apparently attracting the attention of the pedestrian, who, about that time, turned and attempted to
cross the track. He was travelling at the maximum allowable speed of 35 kph.
Argument of the Prosecution (Implied): Had the accusedapplied his brakes when he first saw the man
walking near the track, after his engine rounded the curve, he might have stopped the train in time to
have avoided the accident.

Trial Court: He was convicted of homicide committed with simple negligence.

Issues and Holding:

Whether or not Bonifacio is liable for the death of Castillo. – NO.
Torts – August 30

There is no obligation on an engine driver to stop, or even to slow down his engine, when he sees an
adult pedestrian standing or walking on or near the track, unless there is something in the appearance
or conduct of the person on foot which would cause a prudent man to anticipate the possibility that such
person could not, or would not avoid the possibility of danger by stepping aside. Ordinarily, all that may
properly be required of an engine driver under such circumstances is that he give warning of his
approach, by blowing his whistle or ringing his bell until he is assured that the attention of the pedestrian
has been attracted to the oncoming train.

Of course it is the duty of an engine driver to adopt every measure in his power to avoid the infliction of
injury upon any person who may happen to be on the track in front of his engine, and to slow down, or
stop altogether if that be necessary, should he have reason to believe that only by doing so can an
accident be averted. An engine driver may fairly assume that all persons walking or standing on or near
the railroad track, except children of tender years, are aware of the danger to which they are exposed;
and that they will take reasonable precautions to avoid accident, by looking and listening for the
approach of trains, and stepping out of the way of danger when their attention is directed to an
oncoming train. Any other rule would render it impracticable to operate railroads so as to secure the
expeditious transportation of passengers and freight which the public interest demands.

There was nothing in the conduct of the victim which would have alerted Bonifacio that the man walking
along the side of the tract was a deaf-mute, and that despite the blowing of the whistle and the noise of
the engine he was unconscious of his danger. It was not until the pedestrian attempted to cross the
track, just in front of the train, that the accused had any reason to believe that his warning signals had
not been heard, and by that time it was too late to avoid the accident.

Bonifacio was without fault; and that the accident must be attributed wholly to the reckless negligence
of the deaf-mute, in walking on the track without taking the necessary precautions to avoid danger from
a train approaching him from behind.

As to presumption of negligence in case of traffic violation

The trial court held that the driver could have been driving the train at a speed a little in excess of the
allowable maximum. However, the Court said that this was not sufficiently proven. Moreover, even if
granted to be true, it will not automatically result in the finding of negligence for lack of causal connection
with the accident.

Not every case in which one accidentally injures or kills another he is criminally liable therefor, if at the
moment he happens to be guilty of a violation of some petty regulation (reglamento). The injury or death
must have resulted from some "imprudence or negligence" (imprudencia o negligencia) on his part. True
it need only be slight negligence, if accompanied by a violation of the regulations, but the relation of
cause and effect must exist between the negligence or imprudence of the accused and the injury
inflicted. If it appears that the injury in no wise resulted from the violation of the regulations, or the
negligent conduct of the accused, he incurs no criminal liability under the provisions of this article.
Doubtless a presumption of negligence will frequently arise from the very fact that an accident occurred
at the time when the accused was violating a regulation; especially if the regulation has for its object the
avoidance of such an accident. But this presumption may, of course, be rebutted in criminal as well as in
civil cases by competent evidence. The evidence of record in the case at bar clearly and satisfactorily
discloses that even if the train was running at a speed slightly in excess of the maximum speed prescribed
in the regulations, that fact had no causal relation to the accident and in no wise contributed to it.
Torts – August 30

Dispositive: The judgment convicting and sentencing the appellant in this case should be reversed, and
the accused acquitted of the offense with which he is charged in the information, and his bail bond
exonerated, with the costs of both instances de officio. So ordered.

Cusi v. Philippine National Railways, G.R. No. L-29889, May 31, 1979
Doctrine: Negligence has been defined by Judge Cooley in his work on Torts as "the failure to observe for
the protection of the interests of another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury." All that the law requires is that
it is always incumbent upon a person to use that care and diligence expected of reasonable men under
similar circumstances.
Facts:

Spouses Cusi attended a birthday party in Paranaque, Rizal. After the party which broke up at about 11
o'clock that evening, the spouses proceeded home in their Vauxhall car with Victorino Cusi at the wheel.
Upon reaching the railroad tracks, finding that the level crossing bar was raised and seeing that there
was no flashing red light, and hearing no whistle from any coming train, Cusi proceeded to cross the
tracks. At the same time, a train bound for Lucena traversed the crossing, resulting in a collision between
the two.

This accident caused the spouses to suffer deformities and to lose the earnings they used to enjoy as
successful professionals.

Argument of the plaintiff: Upon reaching the railroad tracks, finding that the level crossing bar was raised
and seeing that there was no flashing red light, and hearing no whistle from any coming train, Cusi merely
slack ened his speed and proceeded to cross the tracks.

Argument of the Defense: The defense is centered on the proposition that the gross negligence of
Victorino Cusi was the proximate cause of the collision; that had he made a full stop before traversing
the crossing as required by section 56(a) of Act 3992 (Motor Vehicle Law), he could have seen and heard
the approach of the train, and thus, there would have been no collision.

Lower court: Orrdered the defendant-appellant to indemnify the plaintiffs- appellees in the total amount
of P239,648.72 for injuries received in a collision caused by the gross negligence of defendant-appellant,
plus P10,000.00 as attorney's fees and expenses of litigation.
Issues and Holding:

1. NO.

First, the Court emphasized that it was adopting the findings of facts of the lower court: The
question of negligence being one of fact, the lower court's finding of negligence on the part of
the defendant-appellant deserves serious consideration by the Court. It commands great
respect and weight, the reason being that the trial judge, having the advantage of hearing the
parties testify and of observing their demeanor on the witness stand, is better situated to make
conclusions of facts. Thus, it has been the standing practice of appellate courts to accord lower
court's judgments the presumption of correctness. And unless it can be shown that error or
Torts – August 30

errors, substantial in character, be shown in the conclusion arrived at, or that there was abuse
in judicial scrutiny, the higher courts are bound by their judgments.

Even assuming that they are not bound by such findings, they would have arrived at the same
conclusions:

Negligence has been defined by Judge Cooley in his work on Torts as "the failure to observe for
the protection of the interests of another person that degree of care, precaution, and vigilance
which the circumstances justly demand, whereby such other person suffers injury." All that the
law requires is that it is always incumbent upon a person to use that care and diligence expected
of reasonable men under similar circumstances.

In this case, the warning devices installed at the railroad crossing were manually operated; there
were only 2 shifts of guards provided for the operation thereof — one, the 7:00 A.M. to 3:00 P.
M. shift, and the other, the 3:00 P.M. to 11:00 P.M. shift. On the night of the accident, the train
for Lucena was on an unscheduled trip after 11:00 P.M. During that precise hour, the warning
devices were not operating for no one attended to them.

Also, as observed by the lower court, the locomotive driver did not blow his whistle, thus: "... he
simply sped on without taking an extra precaution of blowing his whistle. That the train was
running at full speed is attested to by the fact that notwithstanding the application of the
emergency brakes, the train did not stop until it reached a distance of around 100 meters."

Victorino Cusi had exercised all the necessary precautions required of him as to avoid injury to -himself
and to others. Under the circumstances. There was no need for him to have made a full stop; relying on
his faculties of sight and hearing, Victorino Cusi had no reason to anticipate the impending danger

The record shows that the spouses Cusi previously knew of the existence of the railroad crossing, having
stopped at the guardhouse to ask for directions before proceeding to the party. At the crossing, they
found the level bar raised, no warning lights flashing nor warning bells ringing, nor whistle from an
oncoming train. They safely traversed the crossing.

On their return home, the situation at the crossing did not in the least change, except for the absence of
the guard or flagman. Hence, on the same impression that the crossing was safe for passage as before,
Victorino Cusi merely slackened his speed and proceeded to cross the tracks, driving at the proper rate
of speed for going over railroad crossings

2. WON the amount of damages awarded was reasonable. – YES.

Actual damages - The total award of actual damages (P23,946.72) was correct because this is
the total actual expenses ncurred by the spouses.

Loss of income - The award is reasonable because this is the amount of income lost for not being
able to exercise their professions for said amount of time

Loss of profit - As regards the award of P20,000.00 for profits which Victorino Cusi failed to
realize from a certain real estate transaction with the Dolor Lopez Enterprises, this is proper
Torts – August 30

given the plaintiff presented uncontroverted evidence as to certainty of the materialization of

the stated transaction.

Moral damages - The award of P70,000.00 to Mrs. Cusi and P50,000.00 to Victorino Cusi as moral
damages is not excessive. In their own respective fields of endeavor, both were successful. Now
they have to bear throughout their whole lifetime the humiliation wrought by their physical
deformities which no doubt affected, and will continue to do so, their social lives, their financial
undertakings, and even their mental attitudes.

Attorney’s Fees – The P10,000.00) given as attorney's fees and expenses of litigation is not
unreasonable. The total amount of damages awarded by the trial court should bear legal interest
at 6% from the rendition of the j judgment, which was on March 26, 1968.
Dispositive: WHEREFORE, the judgment of the lower court is hereby AFFIRMED with the modification
that the total amount of damages shall bear legal interest at six per cent (6%) from the rendition of the
decision dated March 26, 1968.

Wright v. Manila Electric R.R. & Light Co., G.R. No. 7760, October 1, 1914
Doctrine: The plaintiff was thrown off his calesa when his horse stumbled upon the elevated railroad
tracks of the defendant. While the trial court held that the defendant was indeed negligent in
maintaining its tracks, the plaintiff was also negligent in that he was intoxicated during the time of the
incident. Upon appeal, the Court said that it would not have mattered if the plaintiff was sober or
intoxicated. The accident happened due to the negligence of the defendant, and could have happened
no matter what the condition of the plaintiff was. If one's conduct is characterized by a proper degree
of care and prudence, it is immaterial whether he is drunk or sober.

Mere intoxication is not in itself negligence. It is but a circumstance to be considered with the other
evidence tending to prove negligence. It is the general rule that it is immaterial whether a man is drunk
or sober if no want of ordinary care or prudence can be imputed to him, and no greater degree of care is
required than by a sober one.

Facts:
The plaintiffs’ residence is on the street along which defendant’s railways run. These rails were above-
ground and the ties upon which the rails rested projected out of the ground, making the tops some 5 or
6 inches above the level of the street.

On the night of Aug. 8, 1909, the plaintiff drove home in a calesa and upon crossing the tracks, the horse
stumbled, leaped forward and fell. The vehicle stroke one of the rails with great force and the plaintiff
was thrown off the vehicles, causing damages.

Argument of defendant: During trial, it was admitted that the defendant was negligent in maintaining its
tracks. However, it is contended that the plaintiff was also negligent in that he was intoxicated at the
time of the accident and unable to take care of himself properly. On appeal, the defendant said that its
negligence was in its failure properly to maintain the track; plaintiff’s negligence was his intoxication; the
’principal occurrence’ was plaintiff’s fall from his calesa. It seems clear that plaintiff’s intoxication
contributed to the fall; if he had been sober, it can hardly be doubted that he would have crossed the
track safely, as he had done a hundred times before
Torts – August 30

Trial court: The trial court held both parties negligent, but that the plaintiff’s was not as great as the
defendant’s, and so damages were apportioned, awarding P1,000 In damages to the plaintiff.

The plaintiff appeals on the ground that the damages were insufficient, while the defendant on the
ground that it was not liable.
Issues and Holding:
WON both plaintiff and defendant were negligent. – NO, plaintiff’s intoxication alone does not amount to
negligence.
The facts do not support the court’s conclusion that if the plaintiff had been sober, he would not have
fallen from the vehicle. A horse crossing an elevated railroad, stumbling by reason of the unsure footing
and falling, the vehicle crashing against the rails with such force as to break a wheel, is sufficient to throw
a person from the vehicle no matter what his condition. To conclude that a sober man would not have
fallen, is to enter the realm of speculation and guess work. It is the general rule that it is immaterial
whether a man is drunk or sober if no want of ordinary care or prudence can be imputed to him, and no
greater degree of care is required to be exercised by an intoxicated man for his own protection than by
a sober one.

On the other hand, a street car company which maintains its tracks in the public highway, at a point
where they are crossed by travelers, in such condition that the rails and a considerable portion of the
ties are above the level of the street, is negligent and is responsible to a person who, having to pass over
said tracks at right angles with a vehicle in the nighttime, is injured by reason of the condition of the
tracks, he using ordinary care and prudence in making the crossing

Dispositive: The judgment appealed from is affirmed, without special finding as to costs.
Carson’s dissent: The trial court’s finding of fact that the plaintiff was negligent should have been upheld.
Torts – August 30

Martinez v. Buskirk, G.R. No. L-5691, December 27, 1910

Doctrine: (1)The duty, a violation of which is claimed to be negligence in the respect in question, is to
exercise reasonable care and prudence. Where reasonable care is employed in doing an act not itself
illegal or inherently likely to produce damage to others, there will be no liability, although damage in fact
ensue; (2) It is believed that acts or performances which, in a long time, have not been destructive and
which are approved by the society, are considered as custom. Hence, they cannot be considered as
unreasonable or imprudent. The reason why they have been permitted by the society is that they are
beneficial rather that prejudicial.
Facts:
On the 11th of September 1908, Carmen Ong de Martinez, was riding a carromata in Ermita, Manila.
When a delivery wagon owned by the defendant which was used for the transportation of fodder and to
which two horses are attached, was coming from the opposite direction, the carromata in which the
plaintiff was seated went close to the sidewalk in order to let the delivery wagon pass by. However,
instead of passing by, the horses ran into the carromata occupied by the plaintiff with her child and
overturned it, causing a serious cut upon the plaintiff’s head and injuring the carromata.

Argument of Defendant: The cochero, who was driving his delivery wagon at the time of the accident,
was actually a good servant and was considered a safe and reliable cochero. He also claims that the
cochero was tasked to deliver some forage at Calle Herran, and for that purpose the defendan’s
employee tied the driving lines of the horses to the front end of the delivery wagon for the purpose of
unloading the forage to be delivered. However, a vehicle passed by the driver and made noises that
frightened the horses causing them to run. The employee failed to stop the horses since he was thrown
upon the ground.

Lower court: Found the defendant was guilty of negligence. The court specifically cited a paragraph of
Article 1903 of the Civil Code: Finally, masters of directors or arts and trades are liable for the damages
causedby their pupils or apprentices while they are under their custody.

Hence, this is appeal to reverse such decision.

Issues and Holding:
Whether or not the employer, who has furnished a gentle and tractable team of horses and a trusty and
capable driver, is liable for the negligence of such driver.- NO. The driver merely acted according to the
custom of the trade.

At the outset, the Court said that while laws on negligence in the Philippines and the US may vary, the
law determining what acts are negligent are generally the same. It then cited a number of American
cases with similar factual circumstances.

Cases cited that show custom of leaving horses behind without need for a separate attendant:
- Hayman vs. Hewitt: He was performing his duty while removing the goods into the house, and,
if every person who suffered a cart to remain in the street while he took goods out of it was
obliged to employ another to look after the horses, it would be impossible for the business of
the metropolis to go on.
- Griggs vs. Fleckenstein: The degree of care required of the plaintiff, or those in charged of his
horse, at the time of the injury, is that which would be exercised by a person of ordinary care
and prudence under like circumstances. It can not be said that the fact of leaving the horse
unhitched is in itself negligence. Whether it is negligence to leave a horse unhitched must be
Torts – August 30

depend upon the disposition of the horse; whether he was under the observation and control
of some person all the time, and many other circumstances; and is a question to be determined
by the jury from the facts of each case.
- Belles vs. Kellner: it is not negligence for the driver of a quite, gentle horse to leave him unhitched
and otherwise unattended on the side of a public highways while the driver is upon the sidewalk
loading goods on the wagon

The duty, a violation of which is claimed to be negligence in the respect in question, is to exercise
reasonable care and prudence. Where reasonable care is employed in doing an act not itself illegal
or inherently likely to produce damage to others, there will be no liability, although damage in fact
ensues.

The cochero of the defendant was not negligent in leaving the horses in the manner described by
the evidence in this case. It is believed that acts or performances which, in a long time, have not
been destructive and which are approved by the society, are considered as custom. Hence, they
cannot be considered as unreasonable or imprudent. The reason why they have been permitted by
the society is that they are beneficial rather that prejudicial.

One could not easily hold someone negligent because of some act that led to an injury or accident.
It would be unfair therefore to render the cochero negligent because of such circumstances.

The court holds that it is a universal practice of merchants during that time to deliver products
through horse-drawn vehicles; and it is also considered universal practice to leave the horses in the
manner in which they were left during the accident.

It has been practiced for a long time and generally has not been the cause of accidents or injuries.
The, through the courts, without prior objection or notice, cannot be suddenly to be permitted to
reverse the practice of decades and thereby make culpable and guilty one who had every reason
and assurance to believe that he was acting under the sanction of the strongest of all civil forces, the
custom of a people.
Dispositive: The judgement is reversed, without special finding as to costs. So ordered.

Yamada v. Manila Railroad Co., G.R. No. 10073, 10074, 10075, December 24, 1915
Doctrine: (1) The rule is that where one rides a public vehicle with the driver thereof and is injured by the
negligence of a third person, to which negligence that of that driver contributes his contributory
negligence is not imputable to the passenger unless said passenger has or is in the position to have and
exercise some control over the driver with reference to the matter wherein he was negligent; (2) a
practice which is dangerous to human life cannot become a custom which will protect anyone who follows
it. One who performs an act so inherently dangerous cannot, when an accident occurs, take refuge behind
the plea that others have performed the same act safely.

Facts:
On Jan 2, 1913, Plaintiffs (Butaro Yamada, Kenjiro Karabayashi, and Takutaru Uyehara) hired an
automobile from defendant taxicab company. It was secured at a certain price and was driven and
controlled by a chauffeur supplied by the taxicab company.
Torts – August 30

They went to Caviete Viejo. On the return trip, while crossing the tracks of defendant Manila Railroad in
the barrio of San Juan, Municipality of Cavite Viejo, they automobile was struck by a train and the
plaintiffs were injured.

TRIAL COURT: Dismissed the complaint at the Manila Railroad and held the taxicab company liable for
damages to plaintiffs. The trial court found that the driver of the automobile drove his machine upon the
railroad tracks without observing the precautions which ordinary care and prudence would require,
without reducing speed and without taking any precaution looking to determining whether there was
danger from a train or locomotive. The trial court accordingly found that the driver was guilty of gross
negligence and that said negligence was the proximate cause of the accident. It also found that the driver
had been, in effect, instructed by the taxicab company to approach and pass over railroad tracks in the
manner and form followed and observed on the occasion in question, and that, for that reason, the
taxicab company was liable for the damages caused.

Arguments and assignment of errors of appellant are discussed below.

Taxicab company appealed.

Issues and Holding:

WON the taxicab company liable. – YES.

1. Argument of the Appeallant: Appellant’s first contention relates to the finding of the trial court
that the driver of the automobile was grossly negligent by not slowing down and going at a
reckless speed upon approaching the railroad crossing. Appellant contends that the view of the
railroad tracks in both directions was obstructed by bushes and trees growing alongside thereof,
so that it was impossible for a person approaching the crossing to detect by sight the approach
of a train.

Supreme Court: It was clearly the duty of the driver to reduce the speed of the car and the noise
thereof, and use any and all faculties available to him to be able to determine whether or not a
train was near. A person must use ordinary care and prudence in passing over a railroad crossing.
It is always incumbent on him to use ordinary care and diligence.

The driver drove upon the tracks without investigation or precaution of any kind. Railroad trains
are generally easily detected by persons who take ordinary precautions.

2. Argument of Appeallant: Appellant’s witness (President of defendant company Mr. Bachrach)

testified that all of his drivers operated cars in that manner and that it was the custom among
automobile drivers generally.

Supreme Court: Obviously, a practice which is dangerous to human life cannot become a custom
which will protect anyone who follows it. One who performs an act so inherently dangerous
cannot, when an accident occurs, take refuge behind the plea that others have performed the
same act safely.

3. Argument of the Appeallant: Appellant contends that plaintiffs cannot recover because the
negligence of the driver of the automobile was imputable to them, having permitted the driver
to approach and pass over the railroad crossing without the use of ordinary care and diligence
Torts – August 30

to determine the proximity of a train or locomotive, and having made no effort to caution or
instruct him or compel him to take reasonable care in making the crossing.

Supreme Court: Appellant is wrong. A person who hires a public automobile and gives the driver
direction as to the place to which he wishes to be conveyed, but exercises no other control over
the conduct of the driver, is not responsible for acts of negligence of the latter or prevented
from recovering for injuries suffered from a collision between the automobile and a train.
Responsibility cannot attach to one who has in no way interfered with and controlled the matter
causing the injury. The party hiring or riding must in some way have cooperated in producing
the injury complained of before he can incur any liability for it.

The rule is that where one rides a public vehicle with the driver thereof and is injured by the
negligence of a third person, to which negligence that of that driver contributes his contributory
negligence is not imputable to the passenger unless said passenger has or is in the position to have
and exercise some control over the driver with reference to the matter wherein he was negligent.

4. Argument of Appellant: Appellant contends that the trial court erred in finding that the
defendant Manila Railroad was not guilty of negligence which contributed to the causing of the
accident.

Supreme Court: The Court found that before the present action, there were 2 other actions:
(First action) Criminal action against the engineer of the rain where he was acquitted. The lower
court found that the engineer gave due and timely signals on approaching the crossing.
Employees of the railroad company fully performed their duty on the night in question. Thus,
the railroad company in no way contributed to the accident; (2) Civil action for damages by the
Second actiongarage and taxicab company against Manila railroad for damages to the
automobile. Manila Railroad won. The court found that Manila Railroad was not negligent. The
bell was rung and the whistle was blown on nearing the crossing. The assertion that the railroad
company did not maintain either a flagman or protecting gates at the gate crossing where the
accident occurred is not considered negligence.

5. Argument of Appellant: That even admitting all of the facts alleged by plaintiffs, appellant is not
liable, because up to the time of the accident, the taxicab company had fully performed its duty
to the public, since it is undisputed in the record that the driver was competent and had a long
and satisfactory record (driving for 5-6 years for defending with accident or misadventure), and
that his negligence, cannot be legally imputed to the taxicab company.

Supreme Court: The appellant is wrong. The trial court correctly found that the driver was guilty
of gross negligence was that such negligence was the proximate cause of the accident and that
the taxicab company had permitted its drivers to approach and pass over railroad tracks in such
manner and form and that it had become custom. For that reason, the taxicab company is liable
for the damages caused.

Dispositive: The judgment of the Court of First Instance with respect to this plaintiff, Kenjiro Karabayashi,
is modified and judgment in his favor and against the Bachrach Garage & Taxicab Co. for P400 is hereby
decreed, with costs.cha
Torts – August 30

Other notes:
Discussion of precedents, CC, etc.:
a. The Civil Code, in dealing with the liability of a master for the negligent acts of his
servant, makes a distinction between private individuals and public enterprises, under
Art. 1902 and Art. 1903 of the OLD Civil Code. They’re under Art. 2176 and Art. 2180 in
the current one.
b. In the chapter of the CC, there is also Art. 1905 (Art. 2183)1, Art. 19062, Art. 1907 (Art.
2190), Art. 1908 (Art. 2191), and Art. 1910 (Art. 2193), which are the only cases under
the CC where damages may be recovered for the master for the negligent servant.
c. Under Art. 1903, the master is liable for the negligent acts of his servant where he is the
owner or director of a business or enterprise and the negligent acts are committed while
the servant is engaged in his master’s employment.
d. In Johnson v David, the defendant was not liable for the acts of his servant in negligently
driving a horse and carriage and injuring the plaintiff who was riding a bicycle. In that
case, the vehicle was being driven by the defendant’s coachman on the private affairs
of the owner, and not a public conveyance driven for hire or as part of a business or
enterprise.
e. The rule applies WON the owner is present when the accident happens. An owner who
sits in his automobile, or other vehicle, and permits his driver to continue in violation of
the law by the performance of negligent acts, after he has had a reasonable opportunity
to observe them and to direct that driver, becomes himself responsible for such acts
(Chapman v Underwood).
i. If the driver, by a sudden act of negligence, and without the owner having a
reasonable opportunity to prevent the act or its continuance, injures a person
or violates the law, the owner of the automobile, although present, is not
responsible, either civilly or criminally.
f. In Bahia v Litonjua and Leynes, an automobile was being operated by defendant as a
public vehicle for hire. On one of the trips, because of a defect in the steering gear, a
child was run over and killed.
i. In addition to the requirement to furnish and use proper and safe machines, it
is the duty of a person or corporation operating automobiles to for hire to
exercise ordinary care and diligence in the selection of the drivers of his or its
automobiles and in supervision over them while in his or its employ, including
the promulgation of proper rules and regulations and the formulation and due
publication of proper instructions for their guidance in cases where such rules,
regulations, and instructions are necessary.
ii. Under Art. 1903 (Art. 2180): When an injury is caused by the negligence of a
servant or employee, there instantly arises a presumption of law that there was
negligence on the part of the master or employer either in the selection of the
servant or employee or in supervision over him after the selection, or both
iii. This presumption is juris tantum and not juris et de jure, which means it can be
rebutted. If the employer shows that in selection and supervision he has
exercised the care and diligence of a good father of a family, the presumption
is overcome and he is relieved from liability.

1
The articles in parentheses are the articles in the current CC. Some are amended but are generally the same.
2
Not in new CC, unless it is hidden somewhere else not under the chapter on quasi-delicts
Torts – August 30

g. THUS, the taxicab company did not perform its full duty when it furnished a safe and
proper care and a driver with a long and satisfactory record. It failed to comply with the
requirement of supervision and instruction, including the promulgation of proper rules
and regulations.
i. The taxicab company has failed to rebut the presumption of negligence arising
from the carelessness of its servant, but it has made those negligent acts its own
by having observed and known the custom of its drivers without disapproving it
and without issuing instructions designed to supersede it.
2) ERROR AS TO DAMAGES:
a. Under the law, each of the plaintiffs is entitled to recover the time, doctor’s bills and
hospital bills and medicines, and any other item of expense which it was found necessary
to undergo by reason of the damages sustained.
i. YAMADA: Reimbursed P49 for hospital bills, P50 for Dr. Strahan, and loss of time
at the rate of P100/month. TC allowed him for certain alleged fees of doctors
and expenses at hot springs in Japan. However, he remained in Manila for nearly
6 months after the accident before going back to Japan. He was already in good
physical condition by the time he left the Philippines. No evidence was given
with regard to the expenses in Japan. In all, he is only given P299 (P100 x 2
months, P50, and P49). The expenses in Japan were taken out.
ii. UYEHARA: Same with Yamada. His claim as to expenses in Japan were taken out.
He is given P950 (P200 x 3 months, P350 for hospital bills)
iii. KARABAYASHI: Plaintiff was able to move about immediately after the accident
occurred. It seems incredible to the court that the plaintiff, who suffered no
physical injury, should have paid out more than P800, especially compared to
the other plaintiffs who spent less but were injured much worse. He is given
P400 (he lost work for 2 and a half months, at a rate of P160/month).

Jarco Marketing Corporation v. Court of Appeals, 321 SCRA 375 (1999)

Doctrine: (1) ACCIDENT pertains to an unforeseen event in which no fault or negligence attaches to
defendant (or if it happens wholly or partly through human agency, it is an event which under the
circumstances is unusual or unexpected by the person to whom it happens); there is exercise of ordinary
care here. NEGLIGENCE is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do. A (2) Children below 9 is conclusively
presumed to have acted without discernment, and are exempt from criminal liability. Since negligence
may be a felony and a quasi-delict, it required discernment as a condition of liability, so therefore, said
children are presumed to be incapable of negligence.

Facts:
Jarco Marketing owns Syvel’s Department Store; Kong, Tiope, and Panelo are store managers; Sps.
Aguilar are the parents of daughter Zhieneth.

Criselda and Zhieneth Aguilar (6 years old) were at the 2nd floor of Syvel’s Department Store. Criselda
was signing her credit card slip when she felt a sudden gust of wind and heard a loud thud. When she
looked behind her, she saw her daughter pinned by the bulk of the store’s gift wrapping counter. She
asked the assistance of the people around her, and she was immediately rushed to Makati Medical
Torts – August 30

Center where she was operated. The next day, she lost her speech. She died 14 days after the accident.
The cause of her death was attributed to the injuries sustained.

Argument of Spouses Aguilar:

- After her burial, Sps. Aguilar demanded the reimbursement of hospitalization, medical bills, and
wake and funeral expenses from the petitioners, but they refused to pay. Sps. Aguilar filed a
complaint for damages, seeking the payment of actual and moral damages, attorney’s fees, and
for loss of income and exemplary damages.

Arguments of Petitioners:
- The petitioners denied any liability for Zhieneth’s injuries and death. They also said the complaint
was malicious, so they sought the dismissal of the complaint and an award of moral and
exemplary damages, as well as attorney’s fees.

Findings of the trial court: The lower court found that Criselda was negligent in exercising care and
diligence over her daughter by allowing her to freely roam around in a store with glassware and
appliances. It also ruled that Zhieneth was guilty of contributory negligence for climbing the counter,
thereby triggering its collapse. It ruled that the ounter was made of sturdy wood with strong support,
and it has never fell nor collapsed for the past 15 years since its construction. Moreover, Jarco Marketing
maintained that it observed due diligence of a good father of the family. The RTC found that the
preponderance of evidence favored the store, et al, saying that the proximate cause was Zhieneth’s act
of clinging to the counter, and that Criselda’s negligence contributed to the accident. The RTC found that
the counter was not an attractive nuisance [something that would attract children to approach, get on
or use it], since the counter was situated at the end or corner of the 2nd floor.

Arguments of the Spouses Aguilar:

- Zhieneth should be entitled to the conclusive presumption that a child below 9 is incapable of
contributory negligence. Even if she is capable of contributory negligence, it was physically
impossible for her to have propped herself on the counter considering her small frame, and
height and weight of the counter. The fact that a former employee of the store, Gonzales,
accompanied Zhieneth to the hospital belied the theory that Zhieneth climbed the counter.
- This employee Gonzales said that when Zhieneth was asked by the doctor what she did, she said
“Nothing, I did not come near the counter and the counter just fell on me.” This should be
accorded credit according to the spouses.
- Negligence could not be imputed to Criselda since it was reasonable for her to let go of Zhieneth
at that moment that she was signing the credit card slip.
- The proximate cause was petitioner’s negligence in failing to institute measures to have the
counter permanently nailed.

Arguments of Petitioners:
- Zhieneth’s death was an ACCIDENT. bNailing the counter to the ground was not necessary
because it has been there for the longest time without any prior accident and it’s just in a corner.
- The criminal case for homicide through simple negligence filed against them was dismissed, and
they were acquitted.

Finding of CA: The CA reversed RTC, ruling in favor of Sps. Aguilar. It found that the Petitioners were
negligent in maintaining a structurally dangerous counter [it’s shaped like an inverted L; the top is wider
than the base; weight of the upper portion not evenly distributed nor supported by the narrow base].
Torts – August 30

Two former employees brought this to the attention of the management but the latter ignored their
concern. CA said the incident could have been avoided had petitioners repaired this defective counter.
The contention that it has been there for a long time without a prior incident is immaterial. It also
concluded that Zhieneth was incapable of negligence or other tort. Likewise, Criselda was absolved of
any negligence. The testimony of Gonzales (former employee) as to Zhieneth’s actions were given credit.
It also awarded actual damages, compensatory damages [denied award of funeral expenses for lack of
proof to substantiate it]

The CA denied petitioners’ MR, so they are now seeking the reversal of said decision, saying that since
the action is based on tort, any finding of negligence on the part of Sps. Aguilar would negate their claim
for damages, where said negligence was the proximate cause of the injury sustained. They also assailed
the testimony of Gonzales who was already separated from the store (tarnished by ill-feelings and all).
Issues and Holding:
1. WON Zhieneth’s death was accidental or attributable to negligence. – IT WASATTRIBUTABLE TO
NEGLIGENCE.

The concepts of accident and negligence are intrinsically contradictory

ACCIDENT pertains to an unforeseen event in which no fault or negligence attaches to defendant

(or if it happens wholly or partly through human agency, it is an event which under the
circumstances is unusual or unexpected by the person to whom it happens); there is exercise of
ordinary care here

NEGLIGENCE is the omission to do something which a reasonable man, guided by those

considerations which ordinarily regulate the conduct of human affairs, would do, or the doing
of something which a prudent and reasonable man would not do. Alternatively, it is the failure
to observe, for the protection of another person’s interest, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such other person suffers injury

Picart v. Smith lays down the test to determine WON negligence exists: Did the defendant in
doing the alleged negligent act use that reasonable care and caution which an ordinary prudent
person would have used in the same situation? If not, he is guilty of negligence.

The SC found that Zhieneth performed no act that facilitated her death. Basis is her statement
to the doctor as related by former employee Gonzales. It was made part of the res gestae since
she made the statement immediately subsequent to the startling occurrence. It is axiomatic that
matters relating to declarations of pain or suffering and statements made to a physician are
generally considered declarations and admissions. Also, the court considered the fact that
Zhieneth was of a tender age (and in so much pain!), so it would be unthinkable that she would
lie.

2. WON negligence was attributable to petitioners [for maintaining a defective counter] or to Sps.
Aguilar [for failing to exercise due and reasonable care while inside the store]. – THE INCIDENT
WAS ATTRIBUTABLE TO THE FAULT OF PETITIONERS.

The Petitioners were informed of the danger posed by the unstable counter, yet they did not act
on the matter, so they failed to discharge the due diligence required of a good father of a family.
They failed to establish that the testimonies of former employees were biased.
Torts – August 30

As to the alleged contributory negligence of the child, the Court ruled that there is a conclusive
presumption that children below 9 are incapable of contributory negligence is applied.

Judge Sangco [book author] says that children below 9 is conclusively presumed to have acted
without discernment, and are exempt from criminal liability. Since negligence may be a felony
and a quasi-delict, it required discernment as a condition of liability, so therefore, said children
are presumed to be incapable of negligence. Even if contributory negligence would be attributed
to Zhieneth, no injury should have occurred if petitioners’ theory that the counter is stable and
sturdy is to be believed.

Criselda is absolved from any contributory negligence, since it was reasonable for her to let go
of her child to sign a slip. Zhieneth was just a foot away from her mother, and the counter was
just four meters away from Criselda (contrary to statements that Zhieneth was loitering at that
time).

Dispositive: WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged
decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.

Hidalgo Enterprises, Inc. v. Balandan, G.R. No. L-3422, June 13, 1952
Doctrine: (1) The doctrine of attractive nuisance: One who maintains on his premises dangerous
instrumentalities 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. (2) The attractive
nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence
of some unusual condition or artificial feature other than the mere water and its location.
Facts:
Hidalgo Enterprises was the owner of an ice-plant factory in San Pablo, Laguna. In the factory, there were
two tanks full of water, both 9-ft deep, for cooling purposes of its engine. There was no fence or top
cover; the edges of the tanks were barely a foot high from the surface of the ground. The factory itself
was surrounded with a fence. However, the wide gate entrance was continually open, and anyone could
easily enter the factory. There was no guard assigned on the gate.

Around noon on April 16, 1948, Mario Balandan, a boy barely 3 years old, was playing with other boys
his age when he entered the factory premises through the gate. Mario Balandan then took a bath in one
of the tanks of water and, later on, sank to the bottom of the tank. He died of “asphyxia secondary to
drowning.”

Ruling of the lower court and CA: The CFI and CA ruled that Hidalgo Enterprises maintained an attractive
nuisance and neglected to adopt the necessary precautions to avoid accident to person entering its
premises.

Issues and Holding:

Whether or not a water tank is an attractive nuisance. – NO.

The doctrine of attractive nuisance stathes that one who maintains on his premises dangerous
instrumentalities 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 principal
Torts – August 30

reason for the doctrine is that the condition or appliance in question although its danger is apparent to
those of age, is so enticing or alluring to children of tender years as to induce them to approach, get on
or use it, and this' attractiveness is an implied invitation to such children.

However, several American decisions have ruled that swimming pools or water tanks are NOT considered
attractive nuisance.

The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural,
in the absence of some unusual condition or artificial feature other than the mere water and its location.

Reason: Nature has created streams, lakes and pools which attract children. Lurking in their waters is
always the danger of drowning. Against this danger children are early instructed so that they are
sufficiently presumed to know the danger; and if the owner of private property creates an artificial pool
on his own property, merely duplicating the work of nature without adding any new danger, . . . (he) is
not liable because of having created an "attractive nuisance”. (Indiana Appellate Court, Anderson vs.
Reith-Riley)

The tanks not being attractive nuisance question of taking reasonable precautions become immaterial.
Hidalgo is not liable.
Dispositive: The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability.
No costs.
Dissent of J. Pablo: Children are naturally curious and do not have perfect knowledge of things. They are
amazed by the natural attraction of the waters and shall explore where their curiosity leads them unless
there is something that prevents them. As such, petitioners should have placed fences around the ponds
as an ordinary precaution.

Spouses Latonio v. McGeorge Food Industries, Inc., G.R. No. 206184, December 6, 2017
Doctrine: Proximate cause is defined as 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. And more comprehensively, the proximate legal cause is that acting first and producing the
injury, either immediately or by setting other events in motion, all constituting a natural and continuous
chain of events, each having a close causal connection with its immediate predecessor, the final event in
the chain immediately effecting the injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first event should, as an ordinary prudent
and intelligent person, have reasonable ground to expect at the moment of his act or default that an
injury to some person might probably result therefrom.
Facts:
On September 17, 2000, the petitioners, spouses Ed and Mary Ann Latonio accompanied their eight-
month-old child Ed Christian to a birthday party at the McDonald’s Restaurant, Ayala Center, Cebu City.

During the party and as part of the birthday package, McDonald’s presented two mascots – “Birdie” and
“Grimace” – to entertain and dance for the guests. Respondent Tyke Philip Lomibao was the person
inside the “Birdie” mascot suit.
Torts – August 30

After the mascots danced, guests had their pictures taken with them. Intending to have her child’s photo
taken with the mascots, Mary Ann placed Ed Christian on a chair in front of the mascot “Birdie.” The
mascot positioned itself behind the child and extended its “wings” to give a good pose for the camera.

As photos were about to be taken, Mary Ann released her hold of Ed Christian. Seconds later, the child
fell head first from the chair onto the floor. Several guests attended to Ed Christian. Meanwhile, the
employees of respondent Cebu Golden Food assisted petitioners in giving first aid treatment to Ed
Christian. Petitioners, nevertheless, remained and continued with the party and left only after the party
was over.

Respondent corporation assured the Latonios that they were ready to assist in whatever medical
attention would be required of Ed Christian. However, instead of giving respondent Cebu Golden Food
copies of the medical records of Ed Christian, the Latonios demanded compensation in the amount of
P15 million.

RTC found respondents Cebu Golden Foods and Lomibao to be liable of moral
damages, exemplary damages and attorney’s fees. It ruled that the proximate cause of Ed Christian's fall
and the resulting injury was Lomibao's act of holding the baby during the party which was purportedly
prohibited under the rules and policy of the establishment.

CA reversed RTC’s decision and found that the negligence of the mother was the proximate cause of the
injury.
Issues and Holding:
Whether or not Mary Ann Latonio’s negligence was the proximate cause of Ed Christian’s fall. – YES.

The Supreme Court agreed with CA that despite Mary Ann’s insistence that she made sure that her baby
was safe and secured before she released her grasp on Ed Christian, her own testimony revealed that
she had, in fact, acted negligently and carelessly.

The Court likewise agreed with the pronouncement of CA that indeed, it is irresponsible for a mother
to entrust the safety, even momentarily, of her eight-month-old child to a mascot, not to mention a bird
mascot in thick leather suit that had no arms to hold the child and whose diminished ability to see, hear,
feel, and move freely was readily apparent. Moreover, by merely tapping the mascot and saying “pa-
picture ta”, Mary Ann Latonio cannot be said to have “told, informed and instructed the mascot that she
was letting the mascot hold the baby momentarily.” Releasing her grasp of the baby without waiting for
any indication that the mascot heard and understood her is just plain negligence on the part of Mary Ann.
What is more in accord with human experience and dictates of reason is that a diligent mother would
naturally ensure first and foremost the safety of her child before releasing her hold on him.

Clearly, based on the foregoing, Mary Ann’s negligence was the proximate cause of Ed Christian’s fall
which caused him injury.

Proximate cause is defined as 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.
And more comprehensively, the proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and continuous chain of
Torts – August 30

events, each having a close causal connection with its immediate predecessor, the final event in the
chain immediately effecting the injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first event should, as an ordinary prudent
and intelligent person, have reasonable ground to expect at the moment of his act or default that an
injury to some person might probably result therefrom.

The Court added that the cause of Ed Christian’s fall is traceable to the negligent act of Mary Ann of
leaving him in the “hands” of Lomibao who was wearing the Birdie mascot suit. The Court noted that
“hands” and “wings” were used interchangeably during the testimonies of the witnesses, thus, causing
confusion. However, it must be stressed that while indeed Lomibao has hands of his own, at the time of
the incident he was wearing the Birdie mascot suit. Suffice it to say that the Birdie mascot suit have no
hands but instead have wings. Lomibao cannot possibly hold or grasp anything while wearing the
thick Birdie mascot suit. In fact, even if he wanted to hold Ed Christian or anything, he could not possibly
do so.

Thus, all the aforementioned circumstances leads to no other conclusion than that the proximate cause
of the injury sustained by Ed Christian was due to Mary Ann’s own negligence. All told, in the absence of
negligence on the part of respondents Cebu Golden Foods and Lomibao, as well as their management
and staff, they cannot be made liable to pay for the damages prayed for by the petitioners.
Dispositive: WHEREFORE, premises considered, the Decision dated September 28, 2012 and Resolution
dated January 31, 2013 of the Court of Appeals in CA-G.R. CV No. 03079 are hereby AFFIRMED.

Sarmiento v. Cabrido, 401 SCRA 122 (2003)

Doctrine: 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.
Facts:
Tomasa Sarmiento’s friend, Dra. Virginia Lao, requested her to find someone to reset a
pair of diamond earrings into two gold rings. Sarmiento sent Tita Payag with the earrings to Dingding’s
Jewelry Shop, owned and managed by spouses Luis and Rose Cabrido, which accepted the job order for
P400.
Petitioner provided 12 grams of gold to be used in crafting the pair of ring settings. After 3 days, Payag
delivered to the jewelry shop one of the diamond earrings which was earlier appraised as
worth .33 carat and almost perfect in cut and clarity. Respondent Marilou Sun went on to dismount the
diamond from original settings. Unsuccessful, she asked their goldsmith, Zenon Santos, to do it. He
removed the diamond by twisting the setting with a pair of pliers, breaking the gem in the
process. Petitioner required the respondents to replace the diamond with the same size
and quality. When they refused, the petitioner was forced to buy a replacement in the amount of
P30,000. Rose Cabrido, manager, denied having any transaction with Payag whom she met only after
the latter came to seek compensation for the broken piece of jewelry. Marilou, on the
other hand, admitted knowing Payag to avail their services and r e c a l l e d t h a t w h e n
S a n t o s b r o k e t h e j e w e l r y , P a y a g t u r n e d t o h e r f o r reimbursement thinking
she was the owner. Santos also recalled that Payag requested him to dismount what appeared
to him as sapphire and that the stone accidentally broke. He denied being an employee of the Jewelry
shop.

MTCC: The MTCC of Tagbilaran City rendered a decision in favor of Pertitioner.

Torts – August 30

R T C : O n a p p e a l , R espondents conceded to the existence of an agreement for crafting a pair of gold

rings mounted with diamonds but denied they had obligation to dismount the diamonds
from the original setting. Petitioner claims that dismounting the diamonds from the original setting was
part of the obligation assumed by respondents under the contract of service. The RTC ruled in favor of
the respondents.
CA: CA affirmed the judgment of the RTC.

Argument of Petitioner: The dismounting of the diamond from its original setting was part of the
obligation assumed by the private respondents under the contract of service. Hence, Respondent should
be held liable for the breakage.
Argument of Respondents: Their agreement with the petitioner was for crafting two gold rings mounted
with diamonds only and did not include the dismounting of the said diamonds from their original setting.

Issues and Holding:

1. WON dismounting of the diamond from its original setting was part of the
obligation. – YES.

The contemporaneous and subsequent acts of the parties reveal the scope of obligation
assumed by the jewelry shop to reset the pair of earrings.

Marilou expressed no reservation regarding the dismounting of the diamonds. She

could have instructed Payag to have the diamonds dismounted first, but instead, she readily
accepted the job order and charged P400. After the new settings were completed, she
called petitioner to bring the diamond earrings to be reset. She examined one of them and went
on to dismount the diamond from the original setting. After failing to do the same, she
delegated it to the goldsmith. Having acted the way she did, she cannot deny that the
dismounting was part of the shop’s obligation to reset the pair of earrings.

2. WON respondents are liable for damage – YES.

Those who, in the performance of their obligations are guilty of fraud, negligence
or delay and those who in any manner contravene the tenor thereof, are liable for damages. 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.’

Santos acted negligently in dismounting the diamond from its original setting. Instead of using a
miniature wire, which is the practice of the trade, he used a pair of pliers. Marilou examined the
diamond before dismounting and found the same to be in order. The subsequent
breakage could only have been caused by Santos’ negligence in using the wrong
equipment.

Res ipsa loquitur. Facts show thatMarilou, who has transacted with Payag on at least 10
occasions, and Santos, who has been accepting job referrals through respondents for 6 mos.
now, are employe at the jewelry shop. The jewelry shop failed to perform
its obligation with the ordinary diligence required by the circumstances.

3. WON respondents are liable for moral damages – YES.

Torts – August 30

Moral damages may be awarded in a breach of contract when there is proof that defendant
acted in bad faith, or was guilty of gross negligence amounting tobad faith, or in wanton
disregard of his contractual obligation.

Santos was a goldsmith for more than 40 years. He should have known that using a pair of pliers
would have entailed unnecessary risk of breakage. The g r o s s n e g l i g e n c e o f t h e i r
e m p l o y e e m a k e s t h e r e s p o n d e n t s l i a b l e f o r m o r a l damages.
Dispositive: WHEREFORE, the instant petition is GRANTED and the assailed decision of the Court of
Appeals dated November 26, 1999 is hereby reversed and set aside. Private respondents Luis Cabrido
and Rose Sun-Cabrido are hereby ordered to pay, jointly and severally, the amount of P30,000 as actual
damages and P10,000 as moral damages in favor of the petitioner. No costs.

Francisco v. Chemical Bulk Carriers, Incorporated, G.R. No. 193577, September 7, 2011
Doctrine: One who is physically 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 reasonable person must
act. Thus, the standard of conduct for a blind person becomes that of a reasonable person who is blind.

Facts:
1. Since 1965, Petitioner Francisco has been the owner and manager of a Caltex station
2. In 1978, he completely lost his eyesight due to sickness.
3. In 1993 four persons, including Gregorio Bacsa (Bacsa), came to Francisco’s Caltex station and
introduced themselves as employees of CBCI.
4. Bacsa introduced himself as a radio operator and confidential secretary of a certain Mr. Inawat
(Inawat), CBCI’s manager for operations.
5. Bacsa offered to sell to Francisco a certain quantity of CBCI’s diesel fuel at a lower price.
6. Francisco was hesitant to buy the fuel, thinking that the same are stolen property
7. He asked his son to read and verify the documents which Basca would present.
8. To verify the authority of Besca, he asked him to present his identification card.
9. Because of the above reasons, Francisco agreed to the sale.
10. The deliveries started on 5 April 1993 and lasted for ten months, or up to 25 January 1994. There
were 17 deliveries to Francisco and all his conditions were complied with.
11. The transaction was covered receipts which were typewritten on a half sheet of plain bond paper
to remove doubts as to his legitimacy as a seller.
12. It turned out that Basca was not authoritzed by CBCI to sell the diesel fuel.
13. In February 1996, CBCI sent a demand letter to Francisco regarding the diesel fuel delivered to
him but which had been paid for by CBCI.
14. CBCI demanded that Francisco pay CBCI P1,053,527 for the diesel fuel or CBCI would file a
complaint against him in court.
15. Francisco rejected CBCI’s demand.

RTC: The trial court ruled that Francisco was not liable for damages in favor of CBCI because the 17
deliveries were covered by original and genuine invoices. The trial court declared that Bacsa, as
confidential secretary of Inawat, was CBCI’s authorized representative who received Francisco’s full
payment for the diesel fuel
Torts – August 30

CA: The Court of Appeals set aside the trial court’s Decision and ruled that Bacsa’s act of selling the diesel
fuel to Francisco was his personal act and, even if Bacsa connived with Inawat, the sale does not bind
CBCI. The Court of Appeals declared that since Francisco had been in the business of selling petroleum
products for a considerable number of years, his blindness was not a hindrance for him to transact
business with other people. With his condition and experience, Francisco should have verified whether
CBCI was indeed selling diesel fuel and if it had given Bacsa authority to do so.

Hence, this rule 45 petition.

Argument of Petitioners: Heirs of Francico argue that since Francisco was blind, the standard of conduct
that was required of him was that of a reasonable person under like disability

Issues and Holding:

WON Francisco exercised the required diligence of a blind person in the conduct of his business – NO.

The standard of conduct is the level of expected conduct that is required by the nature of the obligation
and corresponding to the circumstances of the person, time and place. The most common standard of
conduct is that of a good father of a family or that of a reasonably prudent person. To determine the
diligence which must be required of all persons, we use as basis the abstract average standard
corresponding to a normal orderly person.

However, one who is physically 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 reasonable person must
act. Thus, the standard of conduct for a blind person becomes that of a reasonable person who is blind.

Francisco, despite being blind, had been managing and operating the Caltex station for 15 years and this
was not a hindrance for him to transact business until this time. In this instance, however, we rule that
Francisco failed to exercise the standard of conduct expected of a reasonable person who is blind.

First, Francisco merely relied on the identification card of Bacsa to determine if he was
authorized by CBCI. Francisco did not do any other background check on the identity and
authority of Bacsa.

Second, Francisco already expressed his misgivings about the diesel fuel, fearing that they might
be stolen property, yet he did not verify with CBCI the authority of Bacsa to sell the diesel fuel.

Third, Francisco relied on the receipts issued by Bacsa which were typewritten on a half sheet of
plain bond paper.

If Francisco exercised reasonable diligence, he should have asked for an official receipt issued by CBCI.
Fourth, the delivery to Francisco, as indicated in Petron’s invoice, does not show that CBCI authorized
Bacsa to sell the diesel fuel to Francisco. Clearly, Francisco failed to exercise the standard of conduct
expected of a reasonable person who is blind.

Dispositive: WHEREFORE, we DENY the petition. We AFFIRM the 31 May 2010 Decision and 31 August
2010 Resolution of the Court of Appeals
Torts – August 30

Pacis v. Morales, G.R. No. 169467, February 25, 2010

Doctrine: A higher degree of care is required of someone who has in his possession or under his control
an instrumentality extremely dangerous in character, such as dangerous weapons or substances. Such
person in possession or control of dangerous instrumentalities has the duty to take exceptional
precautions to prevent any injury being done thereby. Unlike the ordinary affairs of life or business which
involve little or no risk, a business dealing with dangerous weapons requires the exercise of a higher
degree of care.
Facts:
Alfredo Pacis and Cleopatra Pacis filed a civil case for damages against Jerome Jovanne Morales. Spouses
Paceis are the parents of Alfred, 17 y.o. who died in a shooting incident inside the Top Gun Firearms and
Ammunitions Store (gun store) in Baguio City. Morales is the owner.

Alfred died due to a gunshot wound in the head which he sustained while he was at gunstore. The bullet
which killed Alfred was fired from a gun brought in by a customer of the gun store for repair. The gun,
was left by Morales in a drawer of a table located inside the gun store.

Morales as in Manila at the time. His employee Armando Jarnague, who was the regular caretaker of the
gun store was also not around. Jarnague entrusted to Matibag and Herbolario a bunch of keys which
included the key to the drawer where the gun was kept. It appears that Matibag and Herbolario later
brought out the gun from the drawer and palced it in top of the table. Attacted by it, Alfred got hold of
it. Matibag asked Alfred to return the gun. Alfred followed but it went off the bullet hitting Alfred.

TC: The trial court held Morales civilly liable for the death of Alftred under A2180 in relation to A2176,
ruling that the accidental shooting of Alfred which caused his death was partly due to the negligence of
Morales’ employee – Matibag. Under the Civil Code, respondent is liable for the damages caused by
Matibag on the occasion of the performance of his duties, unless respondent proved that he observed
the diligence of a good father of a family to prevent the damage. The trial court held that respondent
failed to observe the required diligence when he left the key to the drawer containing the loaded
defective gun without instructing his employees to be careful in handling the loaded gun.

CA: CA reversed, ruling that there was no employee-employer relationship because Matibag was not
under the control of Morales with respect to the means and methods in the performance of his worK,
thus A2180 cannot apply. And even if Matibag was an employee, Morales still cannot be held civilly liable
because there is no negligence can be attributed to Morales because he kept the gun. Moreover, he is
not guilty of negligence and lack of due care as he did not fail to observe the diligence of a good father of
a family.

Argument of Defendant: He is not guilty of negligence and lack of due care as he did not fail to observe
the diligence of a good father of a family. The items he has for sale which are per se dangerous are kept
in a place which is properly secured in order that the persons coming into the gun store would not be
able to take hold of it unless it is done intentionally, such as when a customer is interested to purchase
any of the firearms, ammunitions and other related items, in which case, he may be allowed to handle
the same.
Issues and Holding:
WON Morales is civilly liable. – YES. A higher degree of care is expected f someone who handles dangerous
weapons for business.
Torts – August 30

Respondent was clearly negligent when he accepted the gun for repair and placed it inside the drawer
without ensuring first that it was not loaded. For failing to insure that the gun was not loaded, Morales
himself was negligent.

Under PNP Circular No. 9, entitled the “Policy on Firearms and Ammunition Dealership/Repair,” a person
who is in the business of purchasing and selling of firearms and ammunition must maintain basic security
and safety requirements of a gun dealer, otherwise his License to Operate Dealership will be suspended
or canceled.

As a gun store owner, Morales is presumed to be knowledgeable about firearms safety and should have
known never to keep a loaded weapon in his store to avoid unreasonable risk of harm or injury to others.
Morales has the duty to ensure that all the guns in his store are not loaded. Firearms should be stored
unloaded and separate from ammunition when the firearms are not needed for ready access defensive
use.

In the first place, the defective gun should have been stored in a vault. Before accepting the defective
gun for repair, Morales should have made sure that it was not loaded to prevent any untoward accident.
Indeed, Morales should never accept a firearm from another person, until the cylinder or action is open
and he has personally checked that the weapon is completely unloaded.

A higher degree of care is required of someone who has in his possession or under his control an
instrumentality extremely dangerous in character, such as dangerous weapons or substances. Such
person in possession or control of dangerous instrumentalities has the duty to take exceptional
precautions to prevent any injury being done thereby.15 Unlike the ordinary affairs of life or business
which involve little or no risk, a business dealing with dangerous weapons requires the exercise of a
higher degree of care.

Clearly, Morales did not exercise the degree of care and diligence required of a good father of a family,
much less the the degree of care required of someone dealing with dangerous weapons, as would
exempt him from liability in this case.

Choice of claim of petitioners

This case for damages arouse out of the accidental shoting of Alfred. Under A1161 of the Civil Code
petitioners may enforce their claim for damages based on the civil liability arising from the crime under
Article 100 of the RPC or they may opt to file an independent civil action for damages under the Civil
Code.

In this case, instead of enforcing their claim for damages in the homicide case filed against Matibag,
petitioners opted to file an independent civil action for damages against respondent whom they alleged
was Matibag’s employer. Petitioners based their claim for damages under Articles 2176 and 2180 of the
Civil Code.
Dispositive: WHEREFORE, we GRANT the petition. We SET ASIDE the 11 May 2005 Decision and the 19
August 2005 Resolution of the Court of Appeals in CA-G.R. CV No. 60669. We REINSTATE the trial court’s
Decision dated 8 April 1998.

Makati Shangri-La Hotel and Resort, Inc. v. Harper, G.R. No. 189998, August 29, 2012
Torts – August 30

Doctrine: The hotel business is imbued with public interest. Hotelkeepers are bound to provide not only
lodging for their guests but also security to their persons and belongings to their guest. The twin duty
constitutes the essence of the business.
Facts:
 November 1999, Christian Harper came to Manila on a business trip and checked in at the Shangri-
La Hotel. He was due to check out on November 6, 1999. In the early morning of that date, however,
he was murdered inside his hotel room by still unidentified malefactors.
 It appears that at around 11:00 am of November 6, 1999, a Caucasian male entered the Alexis
Jewelry Store in Glorietta and expressed interest in purchasing a Cartier lady's watch valued at
P320,000.00 with the use of two Mastercard credit cards and an American Express credit card issued
in the name of Harper. But the customer's difficulty in answering the queries phoned in by a credit
card representative sufficiently aroused the suspicion of saleslady Anna Liza Lumba (Lumba), who
asked for the customer's passport upon suggestion of the credit card representative to put the credit
cards on hold. Probably sensing trouble for himself, the customer hurriedly left the store, and left
the three credit cards and the passport behind.
 In the meanwhile, Harper's family in Norway must have called him at his hotel room to inform him
about the attempt to use his American Express card. Not getting any response from the room, his
family requested Raymond Alarcon, the Duty Manager of the Shangri-La Hotel, to check on Harper's
room. Alarcon and security personnel went to Room 1428 at 11:27 a.m., and were shocked to
discover Harper's lifeless body on the bed.

Argument of petitioner: Petitioner argues that respondents failed to prove its negligence; that Harper's
own negligence in allowing the killers into his hotel room was the proximate cause of his own death; and
that hotels were not insurers of the safety of their guests.

Argument of respondents: The murderer succeeded to trespass into the area of the hotel's private rooms
area and into the room of the said deceased on account of the hotel's gross negligence in providing the
most basic security system of its guests, the lack of which owing to the acts or omissions of its employees
was the immediate cause of the tragic death of said deceased.”

RTC ruled in favor of the respondents. CA affirmed.

Issues and Holding:

Whether or not petitioner had committed negligence and corollarily, whether its negligence was the
immediate cause of the death of Christian Harper. – YES.

The testimony revealed that the management practice of the hotel prior to the death of the victim was
to deploy only one security or roving guard for every three or four floors of the hotel, which is inadequate
because the hotel is L-shaped that rendered hallways not visible end to end. That there was a
recommendation to increase security to one guard per floor but this was not followed. This ommission
is critical. The hotel business is imbued with public interest. Hotelkeepers are bound to provide not only
lodging for their guests but also security to their persons and belongings to their guest. The twin duty
constitutes the essence of the business.

Therefore, the hotel has a greater degree of care and responsibility for its guests , otherwise the
hotelkeepers would just stand idly by while strangers have unrestricted access to all hotel rooms on the
pretense of being visitors of the guests which is absurd.
Torts – August 30

Its failure to provide adequate security is the proximate cause of Harper’s death.

Makati Shangri-La Hotel, to stress, is a five-star hotel. The "reasonable care" that it must exercise for the
safety and comfort of its guests should be commensurate with the grade and quality of the
accommodation it offers. If there is such a thing as "five-star hotel security", the guests at Makati Shangri-
La surely deserves just that.

When one registers (as) a guest of a hotel, he makes the establishment the guardian of his life and his
personal belongings during his stay. It is a standard procedure of the management of the hotel to screen
visitors who call on their guests at their rooms. The murder of Harper could have been avoided had the
security guards of the Shangri-La Hotel in Makati dutifully observed this standard procedure."

It could be gleaned from findings of the trial court that its conclusion of negligence on the part of
defendant-appellant is grounded mainly on the latter's inadequate hotel security, more particularly on
the failure to deploy sufficient security personnel or roving guards at the time the ghastly incident
happened.

A review of the testimony of Col. De Guzman reveals that on direct examination he testified that at the
time he assumed his position as Chief Security Officer of defendant-appellant, during the early part of
1999 to the early part of 2000, he noticed that some of the floors of the hotel were being guarded by a
few guards, for instance, 3 or 4 floors by one guard only on a roving manner. He then made a
recommendation that the ideal-set up for an effective security should be one guard for every floor,
considering that the hotel is L-shaped and the ends of the hallways cannot be seen. At the time he made
the recommendation, the same was denied, but it was later on considered and approved on December
1999 because of the Centennial Celebration.

It could be inferred from the foregoing declarations of the former Chief Security Officer of defendant-
appellant that the latter was negligent in providing adequate security due its guests. With confidence, it
was repeatedly claimed by defendant-appellant that it is a five-star hotel. Unfortunately, the record
failed to show that at the time of the death of Christian Harper, it was exercising reasonable care to
protect its guests from harm and danger by providing sufficient security commensurate to it being one
of the finest hotels in the country.

Dispositive: WHEREFORE, the Court AFFIRMS the judgment of the Court of Appeals;
and ORDERS petitioner to pay the costs of suit.

Philippine National Bank v. Santos, G.R. No. 208293 & 208295, December 10, 2014
Doctrine: The default standard of diligence in the performance of obligations is “diligence of a good father
of a family.” However, other industries are bound by law to observe higher standards of diligence because
of the nature of their businesses. Banking is impressed with public interest as it affects the economy and
plays a significant role in commerce. The public reposes its faith and confidence upon banks that is why
the Court recognized the fiduciary nature of banks’ functions, and attached a special standard of diligence
for the exercise of their function––extraordinary diligence.
Facts:
Respondents are children of Angel C. Santos who died on 21 March 1991. Sometime in 1996,
respondents discovered that their father maintained a premium savings account with Philippine National
Bank (PNB), Sta. Elena-Marikina City Branch. As of July 1996, the deposit amounted to 1,759,082.63.
Later respondents would also discover that their father also had a time deposit of 1,000,000.00 with
Torts – August 30

PNB. Respondents went to PNB to withdraw their father’s deposit. Lina B. Aguilar, the Branch Manager
of PNB-Sta. Elena-Marikina, required them to submit the following: (1) original or certified true copy of
the Death Certificate of Angel C. Santos; (2) certificate of payment of, or exemption from, estate tax
issued by the Bureau of Internal Revenue (BIR); (3) Deed of Extrajudicial Settlement; and (5) Surety bond
effective for two years and in an amount equal to the balance of the deposit to be withdrawn.

By April 1998, respondents had already obtained the necessary documents, however, when they tried
to withdraw, Aguilar informed them that the deposit had already “been released to a certain Bernardito
Manimbo (Manimbo) on 01 April 1997.” An amount of 1,882,002.05 was released upon presentation of:
(1) an affidavit of self-adjudication purportedly executed by one of the respondents, Remye L. Santos;
(2) a certificate of time deposit dated 14 December 1989 amounting to 1,000,000.00; and (3) the death
certificate of Angel C. Santos, among others. A special power of attorney was purportedly executed by
Reyme L. Santos in favor of Manimbo and a certain Angel P. Santos for purposes of withdrawing and
receiving the proceeds of the certificate of time deposit.

Respondents filed a complaint for the sum of money and damages against PNB before the Regional Trial
Court of Marikina City questioning the release of the deposit amount to Manibmo who had no authority
from them to withdraw their father’s deposit and who failed to present to PNB all the requirements for
such withdrawal. PNB and Aguilar denied that the deceased had two separate accounts (premium
deposit account and time deposit account) with PNB. They alleged that the deceased’s deposit account
was originally a time deposit account that was subsequently converted in to a premium savings account.
Also, they alleged that Aguilar did not know about Angel C. Santos’s death in 1991 because she only
assumed office in 1996. Manimbo was able to submit an affidavit of self-adjudication, required surety
bond, certificate of payment of estate tax dated 31 March 1997. All documents appeared to be regular.

TC: The trial court found PNB and Aguilar negligent in releasing the deposit to Manimbo as they failed to
notify the depositor about the maturity of the time deposit and the conversion of the time deposit into
a premium savings account. Subsequently, Aguilar filed a motion for reconsideration which was denied
by the RTC.

CA: Upon appeal to the Court of Appeals, Aguilar contended that she merely implemented PNB’s Legal
Department’s directive to release the deposit to Manimbo. PNB, on the other hand, argued that the
release of the deposit to Manimbo was pursuant to existing policy. CA sustained the trial court’s findings
of negligence in both parties.

PNB and Aguilar filed their separate petitions for review before the Supreme Court.

Argument of petitioners: The acceptance of invalid and incomplete documents to support the deposit’s
release to Manimbo was a violation of the bank’s fiduciary duty to its clients. These acts constituted
gross negligence on the part of petitioners PNB and Aguilar.
Argument of Aguilar: The Court of Appeals had already found no malice or bad faith on her
part. Moreover, as a mere officer of the bank, she cannot be made personally liable for acts that
she was authorized to do and were mere directives from her superior.
Argument of PNB: It was the presumptuousness and cavalier attitude of respondents that gave rise to
the controversy and not its judgment call. Respondents were lacking in sufficient documentation

Issues and Holding:

Torts – August 30

Whether or not Philippine National Bank and Aguilar was negligent in releasing the deposit to Benardito
Manimbo. – YES.

PNB and Aguilar were negligent in handling the deposit of Angel C. Santos.

The contractual relationship between banks and their depositors is governed by the Civil Code provisions
on simple loan. Once a person makes a deposit of his money to the bank, he is considered to have lent
the bank a money. The bank becomes his debtor, and he becomes the creditor of the bank, which is
obligated to pay him on demand.

The default standard of diligence in the performance of obligations is “diligence of a good father of a
family.” However, other industries are bound by law to observe higher standards of diligence because of
the nature of their businesses. Banking is impressed with public interest as it affects the economy and
plays a significant role in commerce. The public reposes its faith and confidence upon banks that is why
the Court recognized the fiduciary nature of banks’ functions, and attached a special standard of
diligence for the exercise of their function––extraordinary diligence.

PNB and Aguilar’s treatment of Angel C. Santos’s account is inconsistent with the high standard of
diligence required of banks. They accepted Manimbo’s representations despite knowledge of the
existence of circumstances that should have raised doubts on such representations. They did not doubt
why no original death certificate could be submitted; why Reyme L. Santos would execute an affidavit of
self-adjudication when he, together with others, had previously asked for the release of said deposit;
and they relied on the certificate of time deposit and Manimbo’s representation that the passbook was
lost when the passbook had just been previously presented to Aguilar for updating.

Their negligence is not based on their failure to accept respondents’ documents as evidence of the right
to claim the subject deposit. Rather, it is based on their failure to exercise the diligence required of banks
when they accepted the fraudulent representations of Manimbo.
Dispositive: WHEREFORE, the Court of Appeals’ decision dated 25 July 2013 is AFFIRMED with the
MODIFICATIONS in that petitioners Philippine National Bank and Lina B. Aguilar are ordered solidarily
liable to pay respondents P100,000.00 as exemplary damages. Further, the interest rate for the amount
of P1,882,002.05, representing the face value of PNB Manager’s Check No. AF-974686B is modified to
12% from 26 April 1998 until 30 June 2013, and 6% from 01 July 2013 until satisfaction. All monetary
awards shall then earn interest rate at 6% per annum per finality of the decision until full satisfaction.

Casumpang v. Cortejo, G.R. Nos. 171127, 171217 & 17122, March 11, 2015
Doctrine:
(1) To successfully pursue a medical malpractice suit, the plaintiff (must prove that the doctor either
failed to do what a reasonably prudent doctor would have done, or did what a reasonably
prudent doctor would not have done; and the act or omission had caused injury to the
patient. The patient's heir/s bears the burden of proving his/her cause of action.
(2) The Elements of a Medical Malpractice Suit - The elements of medical negligence are: (1) duty;
(2) breach; (3) injury; and (4) proximate causation.
Duty refers to the standard of behavior that imposes restrictions on one's conduct. It requires
proof of professional relationship between the physician and the patient. Without the
professional relationship, a physician owes no duty to the patient, and cannot therefore incur
any liability. Once a physician-patient relationship is established, the legal duty of care follows.
Torts – August 30

The doctor accordingly becomes duty-bound to use at least the same standard of care that a
reasonably competent doctor would use to treat a medical condition under similar
circumstances. Breach of duty occurs when the doctor fails to comply with, or improperly
performs his duties under professional standards. This determination is both factual and legal,
and is specific to each individual case. If the patient, as a result of the breach of duty, is injured
in body or in health, actionable malpractice is committed, entitling the patient to damages. To
successfully claim damages, the patient must lastly prove the causal relation between the
negligence and the injury. This connection must be direct, natural, and should be unbroken by
any intervening efficient causes. In other words, the negligence must be the proximate cause of
the injury. The injury or damage is proximately caused by the physician's negligence when it
appears, based on the evidence and the expert testimony, that the negligence played an integral
part in causing the injury or damage, and that the injury or damage was either a direct result, or
a reasonably probable consequence of the physician's negligence.
(3) A determination of whether or not the petitioning doctors met the required standard of care
involves a question of mixed fact and law; it is factual as medical negligence cases are highly
technical in nature, requiring the presentation of expert witnesses to provide guidance to the
court on matters clearly falling within the domain of medical science, and legal, insofar as the
Court, after evaluating the expert testimonies, and guided by medical literature, learned
treatises, and its fund of common knowledge, ultimately determines whether breach of duty
took place.
(4) Whether or not the defendant doctor committed a breach of duty is to be measured by the
yardstick of professional standards observed by the other members of the medical profession in
good standing under similar circumstances. It is in this aspect of medical malpractice that expert
testimony is essential to establish not only the professional standards observed in the medical
community, but also that the physician's conduct in the treatment of care falls below such
standard.

Facts:
On April 22, 1988, at about 11:30 in the morning, Mrs. Cortejo brought her 11-year old son, Edmer, to
the Emergency Room of the San Juan de Dios Hospital (SJDH) because of difficulty in breathing, chest
pain, stomach pain, and fever. Thereafter, she was referred and assigned to Dr. Casumpang, a
pediatrician. At 5:30 in the afternoon of the same day, Dr. Casumpang, upon examination using only a
stethoscope, confirmed the diagnosis of Bronchopneumonia. Mrs. Cortejo immediately advised Dr.
Casumpang that Edmer had a high fever, and had no colds or cough but Dr. Casumpang merely told her
that her son's bloodpressure is just being active and remarked that that's the usual bronchopneumonia,
no colds, no phlegm.

Dr. Casumpang next visited the following day. Mrs. Cortejo again called Dr. Casumpang's attention and
stated that Edmer had a fever, throat irritation, as well as chest and stomach pain. Mrs. Cortejo also
alerted Dr. Casumpang about the traces of blood in Edmer's sputum. Despite these pieces of information,
however, Dr. Casumpang simply nodded and reassured Mrs. Cortejo that Edmer's illness is
bronchopneumonia.

At around 11:30 in the morning of April 23, 1988, Edmer vomited phlegm with blood streak prompting
the Edmer's father to request for a doctor. Later, Miranda, one of the resident physicians of SJDH,
arrived. She claimed that although aware that Edmer had vomited phlegm with blood streak she failed
to examine the blood specimen. She then advised the respondent to preserve the specimen for
Torts – August 30

examination. Thereafter, Dr. Miranda conducted a check-up on Edmer and found that Edmer had a low-
grade fever and rashes.

At 3:00 in the afternoon, Edmer once again vomited blood. Dr. Miranda then examined Edmer's sputum
with blood and noted that he was bleeding. Suspecting that he could be afflicted with dengue, Dr.
Miranda conducted a tourniquet test, which turned out to be negative. Dr. Miranda then called up Dr.
Casumpang at his clinic and told him about Edmer's condition. Upon being informed, Dr. Casumpang
ordered several procedures done. Dr. Miranda advised Edmer's parents that the blood test results
showed that Edmer was suffering from Dengue Hemorrhagic Fever. Dr. Casumpang recommended
Edmer’s transfer to the ICU, but since the ICU was then full, the respondent, insisted on transferring his
son to Makati Medical Center.

At 12:00 midnight, Edmer, accompanied by his parents and by Dr. Casumpang, was transferred to Makati
Medical Center. Upon examination, the attending physician diagnosed Dengue Fever Stage IV that was
already in its irreversible stage. Edmer died at 4:00 in the morning of April 24, 1988. His Death Certificate
indicated the cause of death as Hypovolemic Shock/hemorrhagic shock/Dengue Hemorrhagic Fever
Stage IV.

Argument of Respondent: Believing that Edmer's death was caused by the negligent and erroneous
diagnosis of his doctors, the respondent instituted an action for damages against SJDH, and its attending
physicians: Dr. Casumpang and Dr. Miranda.

Argument of Petitioners:
- Dr. Casumpang contends that he gave his patient medical treatment and care to the best of his
abilities, and within the proper standard of care required from physicians under similar
circumstances.
- Dr. Miranda argued that the function of making the diagnosis and undertaking the medical
treatment devolved upon Dr. Casumpang, the doctor assigned to Edmer. Dr. Miranda also
alleged that she exercised prudence in performing her duties as a physician, underscoring that
it was her professional intervention that led to the correct diagnosis of Dengue Hemorrhagic
Fever.
- SJDH, on the other hand, disclaims liability by asserting that Dr. Casumpang and Dr. Miranda are
mere independent contractors and consultants (not employees) of the hospital; hence, Article
2180 of the Civil Code does not apply.

RTC: Found the doctors negligent. It found untenable the petitioning doctors' contention that Edmer's
initial symptoms did not indicate dengue fever. It faulted them for heavily relying on the chest x-ray
result and for not considering the other manifestations that Edmer's parents had relayed. It held that in
diagnosing and treating an illness, the physician's conduct should be judged not only by what he/she saw
and knew, but also by what he/she could have reasonably seen and known. It also observed that based
on Edmer's signs and symptoms, his medical history and physical examination, and also the information
that the petitioning doctors gathered from his family members, dengue fever was a reasonably
foreseeable illness; yet, the petitioning doctors failed to take a second look, much less, consider these
indicators of dengue.

The RTC also held SJDH solidarity liable with the petitioning doctors for damages based on the following
findings of facts: first, Dr. Casumpang, as consultant, is an ostensible agent of SJDH because before the
hospital engaged his medical services, it scrutinized and determined his fitness, qualifications, and
Torts – August 30

competence as a medical practitioner; and second, Dr. Miranda, as resident physician, is an employee of
SJDH because like Dr. Casumpang, the hospital, through its screening committee, scrutinized and
determined her qualifications, fitness, and competence before engaging her services; the hospital also
exercised control over her wor
CA: Affirmed the RTC in toto, he CA found the petitioning doctors' failure to read even the most basic
signs of "dengue fever" expected of an ordinary doctor as medical negligence. n SJDH's solidary liability,
the CA ruled that the hospital's liability is based on Article 2180 of the Civil Code. The CA opined that the
control which the hospital exercises over its consultants, the hospital's power to hire and terminate their
services, all fulfill the employer-employee relationship requirement under Article 2180, and it also failed
to show it exercised the diligence of a good father.
Issues and Holding:
1. WON Casumpang had committed inexcusable lack of precaution in diagnosing and in treating the
patient - YES, Casumpang was negligent.

Even assuming that Edmer's symptoms completely coincided with the diagnosis of
bronchopneumonia, we still find Dr. Casumpang guilty of negligence. Wrong diagnosis is not by itself
medical malpractice. Physicians are generally not liable for damages resulting from a bona fide error
of judgment and from acting according to acceptable medical practice standards. Nonetheless, when
the physician's erroneous diagnosis was the result of negligent conduct, it becomes an evidence of
medical malpractice.

In the present case, evidence on record established that in confirming the diagnosis of
bronchopneumonia, Dr. Casumpang selectively appreciated some and not all of the symptoms
presented, and failed to promptly conduct the appropriate tests to confirm his findings. In sum, Dr.
Casumpang failed to timely detect dengue fever, which failure, especially when reasonable prudence
would have shown that indications of dengue were evident and/or foreseeable, constitutes
negligence. Apart from failing to promptly detect dengue fever, Dr. Casumpang also failed to
promptly undertake the proper medical management needed for this disease. Dr. Casumpang failed
to measure up to the acceptable medical standards in diagnosing and treating dengue fever.

Dr. Casumpang's claim that he exercised prudence and due diligence in handling Edmer's case, sside
from being self-serving, is not supported by competent evidence. He failed, as a medical
professional, to observe the most prudent medical procedure under the circumstances in diagnosing
and treating Edmer.

2. WON Miranda had committed inexcusable lack of precaution in diagnosing and in treating the
patient - No, Dr. Miranda is not liable for negligence.

We find that Dr. Miranda was not independently negligent. Although she was subject to the same
standard of care applicable to attending physicians, as a resident physician, she merely operates as
a subordinate who usually refer to the attending physician on the decision to be made and on the
action to be taken. We also believe that a finding of negligence should also depend on several
competing factors. In this case, before Dr. Miranda attended to Edmer, Dr. Casumpang had
diagnosed Edmer with bronchopneumonia. There is also evidence supporting Dr. Miranda's claim
that she extended diligent care to Edmer. In fact, when she suspected, during Edmer's second
episode of bleeding, that Edmer could be suffering from dengue, she wasted no time in conducting
the necessary tests, and promptly notified Dr. Casumpang about the incident. Indubitably, her
Torts – August 30

medical assistance led to the finding of dengue fever. Dr. Miranda's error was merely an honest
mistake of judgment; hence, she should not be held liable for medical negligence.

3. WON Whether or not the petitioner hospital is solidarity liable with the petitioner doctors - Yes,
causal connection between the petitioners' negligence and the patient's resulting death was
established

Casumpang failed to timely diagnose Edmer with dengue fever despite the presence of its
characteristic symptoms; and as a consequence of the delayed diagnosis, he also failed to promptly
manage Edmer's illness. Had he immediately conducted confirmatory tests, and promptly
administered the proper care and management needed for dengue fever, the risk of complications
or even death, could have been substantially reduced. That Edmer later died of Dengue Hemorrhagic
Fever Stage IV, a severe and fatal form of dengue fever, established the causal link between Dr.
Casumpang's negligence and the injury. The element of causation is successfully proven.

Dispositive: WHEREFORE, premises considered, this Court PARTLY GRANTS the consolidated petitions.
The Court finds Dr. Noel Casumpang and San Juan de Dios Hospital solidarity liable for negligent medical
practice. We SET ASIDE the finding of liability as to Dr. Ruby Sanga-Miranda. The amounts of P45,000.00
as actual damages and P500,000.00 as moral damages should each earn legal interest at the rate of six
percent (6%) per annum computed from the date of the judgment of the trial court. The
Court AFFIRMSthe rest of the Decision dated October 29, 2004 and the Resolution dated January 12,
2006 in CA-G.R. CV No. 56400.

Li v. Soliman, G.R. No. 165279, June 7, 2011

Doctrine:
There are four essential elements a plaintiff must prove in a malpractice action 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." Informed consent case requires the plaintiff to "point to significant
undisclosed information relating to the treatment that would alter her decision to undergo. The physician
is not expected to give the patient a short medical education, the disclosure rule only requires of him a
reasonable general explanation in nontechnical terms.
Facts: On July 7, 1993, respondents' 11-year old daughter, Angelica Soliman, underwent a biopsy of the
mass located in her lower extremity at the St. Luke's Medical Center (SLMC). Results showed that
Angelica was suffering from osteosarcoma, osteoblastic type, a high-grade cancer of the bone which
usually afflicts teenage children. Following this diagnosis and as primary intervention, Angelica's right
leg was amputated by Dr. Jaime Tamayo in order to remove the tumor. As adjuvant treatment to
eliminate any remaining cancer cells, and hence minimize the chances of recurrence and prevent the
disease from spreading to other parts of the patient's body (metastasis), chemotherapy was suggested
by Dr. Tamayo. Dr. Tamayo referred Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a
medical oncologist.

On August 18, 1993, Angelica was admitted to SLMC. However, she died on September 1, 1993, just
eleven (11) days after the administration of the first cycle of the chemotherapy regimen.
Torts – August 30

On February 21, 1994, respondents filed a damage suit against petitioner, Dr. Leo Marbella, Mr. Jose
Ledesma, a certain Dr. Arriete and SLMC. Respondents charged them with negligence and disregard of
Angelica's safety, health and welfare by their careless administration of the chemotherapy drugs, their
failure to observe the essential precautions in detecting early the symptoms of fatal blood platelet
decrease and stopping early on the chemotherapy, which bleeding led to hypovolemic shock that caused
Angelica's untimely demise. Further, it was specifically averred that petitioner assured the respondents
that Angelica would recover in view of 95% chance of healing with and when asked regarding the side
effects, petitioner mentioned only slight vomiting, hair loss and weakness. Respondents thus claimed
that they would not have given their consent to chemotherapy had petitioner not falsely assured them
of its side effects.

Argument of Petitioner: Petitioner claimed, that she explained to respondents that even when a tumor
is removed, there are still small lesions undetectable to the naked eye and that adjuvant chemotherapy
is needed to clean out the small lesions in order to lessen the chance of cancer to recur. She did not give
the respondents any assurance that chemotherapy will cure Angelica’s cancer. During these
consultations with respondents, she explained the following side effects of chemotherapy treatment to
respondents: 1.) Falling hair; 2.) nausea and vomiting; 3.) loss of appetite; 4.) low count of WBC, RBC,
and platelets; 5.) possible sterility due to the effects on Angelica’s ovary; 6.) Damage to kidney and heart;
7.) darkening of the skin especially when exposed to sunlight. She actually talked to the respondents four
times, once at the hospital after the surgery, twice at her clinic and fourth when Angelica’s mother called
her through long distance.
Argument of Respondents: Ptitioner gave them assurance that there is 95% chance of healing for Angelica
if she undergoes chemotherapy and that the only side effects were nausea, vomiting and hair loss. Those
were the only side effects of chemotherapy mentioned by petitioner.
TC: In dismissing the complaint, the trial court held that petitioner was not liable for damages as she
observed the best known procedures and employed her highest skill and knowledge in the
administration of chemotherapy drugs on Angelica but despite all efforts said patient died.
Issues and Holding:
Whether or not Dr. Rubi Li is negligent and is liable for damages. – NO.

There are four essential elements a plaintiff must prove in a malpractice action 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." The gravamen in an informed consent case requires the plaintiff to "point
to significant undisclosed information relating to the treatment which would have altered her decision
to undergo it.

Examining the evidence on record, the Court held that there was adequate disclosure of material risks
inherent in the chemotherapy procedure performed with the consent of Angelica's parents.
Respondents could not have been unaware in the course of initial treatment and amputation of
Angelica's lower extremity, that her immune system was already weak on account of the malignant
tumor in her knee.On the other hand, it is difficult to give credence to respondents' claim that petitioner
told them of 95% chance of recovery for their daughter, as it was unlikely for doctors like petitioner who
were dealing with grave conditions such as cancer to have falsely assured patients of chemotherapy's
success rate. Besides, informed consent laws in other countries generally require only a reasonable
explanation of potential harms, so specific disclosures such as statistical data, may not be legally
necessary.
Torts – August 30

Dispositive: WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 15,
2004 and the Resolution dated September 1, 2004 of the Court of Appeals in CA-G.R. CV No. 58013 are
SET ASIDE.

The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in Civil Case
No. 8904 is REINSTATED and UPHELD.

Rosit v. Davao Doctors Hospital, G.R. No. 210445, December 7, 2015

Doctrine:

- Where the application of the principle of res ipsa loquitur is warranted, an expert testimony may
be dispensed with in medical negligence cases.
- The resort to res ipsa loquitur as an exception to the requirement of an expert testimony in
medical negligence cases may be availed of if the following essential requisites are satisfied: (a)
The accident was of a kind that does not ordinarily occur unless someone is negligent; (b) the
instrumentality or agency that caused the injury was under the exclusive control of the person
charged; and (c) the injury suffered must not have been due to any voluntary action or
contribution of the person injured.
- The physician has a duty to 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 a 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.

Facts:
Petitioner Rosit figured in a motorcycle accident. The X-ray soon taken at the Davao Doctors Hospital
showed that he fractured his jaw. He was then referred to Dr. Gestuvo, a specialist in the mandibular
injuries, who operated on Rosit.

During the operation, Dr. Gestuvo used a metal plate fastened to the jaw with metal screws to immobilize
the mandible. As the operation required the smallest screws available, Dr. Gestuvo cut the screws on
hand to make them smaller. Dr. Gestuvo knew that there were smaller titanium screws available in
Manila, but did not so inform Rosit supposing that the latter would not be able to afford the same.

Following the operation, Rosit could not properly open and close his mouth. X-rays done 2 days after the
operation showed that the fracture in his jaw was aligned but the screws used on him touched his molar.
Given such fact, Rosit was referred to a dentist, Dr. Pangan, who opined that another operation is
necessary and that it be performed in Cebu.

Alleging that the operation conducted in his mandible was improperly done, Rosit went back to Dr.
Gestuvo to demand a loan to defray the cost of the additional operation as well as the expenses of the
trip to Cebu. In Cebu, Dr. Pangan removed the plate and screws installed by Dr. Gestuvo and replaced
them with smaller titanium plate and screws. Dr. Pangan also extracted Rosit’s molar that was hit with a
screw and some bone fragments thus, he was able to eat and speak well and could open and close his
mouth normally.
Torts – August 30

On his return to Davao, Rosit demanded that Dr. Gestuvo reimburse him for the cost of the operation
and the expenses he incurred in Cebu as well as the expense for the removal of the plate and screws. Dr.
Gestuvo refused to pay.

RTC: It freed the Davao Doctors Hospital from liability on the ground that it exercised the proper diligence
in the selection and supervision of Dr. Gestuvo but adjudged Dr. Gestuvo negligent and liable for
payment of damages and expenses. In so ruling, this Court applied the res ipsa loquitur principle which
holds that “the need for expert, medical testimony may be dispensed with because the injury itself
provides the proof of negligence.”

CA: It modified the judgment of the trial court by deleting the awards. It further ruled that res ipsa
loquitur principle does not apply in this case and that, the testimony of an expert witness is necessary
for a finding of negligence. It gave credence to Dr. Pangan’s letter which stated that Dr. Gestuvo did not
commit gross negligence in his emergency management of Rosit’s fractured mandible.

Issues and Holding:

(1) Whether or not there was negligence on the part of the respondent Dr. Gestuvo. - YES. Respondent
Dr. Gestuvo was negligent in performing the operation to Rosit which resulted in the screw hitting Rosit’s
molar.

A medical negligence case is a type of claim to redress a wrong committed by a medical professional that
has caused bodily harm to or death of a patient. There are four elements involved in a medical negligence
case, namely: duty, breach, injury and proximate causation.

To establish medical negligence case, the Court has held that an expert testimony is generally required
to define the standard of behaviour by which the court may determine whether the physician has
properly performed the requisite duty toward the patient.

However, in Solidum v. People of the Philippines, the Court explained that where the application of the
principle of res ipsa loquitur is warranted, an expert testimony may be dispensed with in medical
negligence cases. The resort to res ipsa loquitur as an exception to the requirement of an expert
testimony in medical negligence cases may be availed of if the following essential requisites are satisfied:
(a) The accident was of a kind that does not ordinarily occur unless someone is negligent; (b) the
instrumentality or agency that caused the injury was under the exclusive control of the person charged;
and (c) the injury suffered must not have been due to any voluntary action or contribution of the person
injured. Since res ipsa loquitur applies in this case, the essential elements must be present.

(a) The accident was of a kind that does not ordinarily occur unless someone is negligent- this
was established when Rosit proved that one of the screws installed by Dr. Gestuvo struck his molar.
Clearly, had Dr. Gestuvo used the proper size and length of screws and placed the same in the proper
locations, these would not have struck Rosit’s teeth causing him pain and requiring him to undergo a
corrective surgery. Dr. Gestuvo also knew that these screws were available locally at the time of the
operation yet he did not avail of such items and went ahead with the larger screws and merely sawed
them off. Even assuming that the screws were already at the proper length after Dr. Gestuvo cut the
same, it is apparent that he negligently placed one of the screws in the wrong area thereby striking one
of Rosit’s teeth.
Torts – August 30

(b) The instrumentality or agency that caused the injury was under the exclusive control of the
person charged- It was Dr. Gestuvo who performed the operation which resulted in the screw hitting
Rosit’s molar.

(c) The injury suffered must not have been due to any voluntary action or contribution of the
person injured- It was not shown that Rosit’s lung disease could have contributed to the pain. What is
clear is that he suffered because one of the screws that Dr. Gestuvo installed hit Rosit’s molar.

(2) There are four essential elements a plaintiff must prove in a malpractice action based upon the
doctrine of informed consent:

(a) The physician had a duty to disclose material risks- Dr. Gestuvo clearly had the duty of
disclosing to Rosit the risks of using the larger screws for the operation.

(b) He failed to disclose or inadequately disclosed those risks- Dr. Gestuvo failed to disclose these
risks to Rosit, deciding by himself that Rosit could not afford to get the more expensive titanium screws.

(c) As a direct and proximate result of the failure to disclose, the patient consented to treatment
she otherwise would not have consented to- had Rosit been informed that there was a risk that larger
screws are not appropriate for the operation and that an additional operation replacing the screws might
be required to replace the same, as what happened in this case, Rosit would not have agreed to the
operation.

(d) The plaintiff was injured by the proposed treatment- as a result of using the larger screws,
Rosit experienced pain and could not heal properly because one of the screws hit his molar.

(2) Whether or not petitioner Rosit was deprived of the opportunity to make an “informed consent”. - YES.
Rosit was not informed that such smaller screws were available in Manila, albeit at a higher price.

Without a doubt, Dr. Gestuvo is guilty of withholding material information which would have been vital
in the decision of Rosit in going through with the operation with the materials at hand. Thus, Dr. Gestuvo
is also guilty of negligence on this ground.

Dispositive: WHEREFORE, the instant petition is GRANTED. The CA Decision dated January 22, 2013 and
Resolution dated November 7, 2013 in CA-G.R. CV No. 00911-MIN are hereby REVERSED and SET ASIDE.
Further, the Decision dated September 14, 2004 of the Regional Trial Court, Branch 33 in Davao City in
Civil Case No. 27,345-99 is hereby REINSTATED and AFFIRMED.

Adarne v. Aldaba, A.C. No. 801, June 27, 1978

Doctrine: An attorney is not bound to exercise extraordinary diligence, but only a reasonable degree of
care and skill.
Facts:

Spouses Cumpio filed an action for forcible entry against herein complaint Cesario Adarne, Aning Arante,
and Miguel Inokando with the Justice of the Peace of Alang-alang Leyte.

Atty. Isauro Marmita represented the defendants who raised the issue of ownership of the land in
question. The Justice of the Peace dismissed the complaint for lack of jurisdiction, prompting the
Torts – August 30

plaintiffs again to appealto the Court of First Instance of Leyte Attys. Arturo Mirales and Generoso
Casimpan filed the answer for the defendants.
At the hearing of the case on August 7, 1961, Cesario Adarne, noting that his attorneys had not yet
arrived, prevailed upon the respondent Atty. Damian Aldaba, who was present in court to attend the
trial of an electoral case, to appear as counsel for them.

The respondent, who is a third degree cousin of the complainant, agreed, and entered a special
appearance. Upon noticing that the plaintiffs and their counsel were not also present in court, the
respondent, instead of asking for a postponement, moved for the dismissal of the case. This motion was
granted and the case was again dismissed. Thereafter, the plaintiff filed a motion for the reconsideration
of the order, to which the respondent filed an opposition in behalf of the defendants, and the motion
was denied. CA remanded the case to the lower court for further proceedings.

On October 23, 1964 the respondent was again prevailed upon by the complainant to appear in his behalf.
The respondent entered a "special appearance" for the complainant and argued that the interest of
justice would best be served of the defendants were allowed to file an action for quieting of title and the
case heard jointly with the pending action for forcible entry. Finding merit in the argument, the court
ordered the defendant Cesario Adarne to file an action for quieting of title within one (1) week and the
plaintiffs to answer the same within the reglementary period, after which both cases would be tried
jointly. The hearing was deferred until after the filing of the action for quieting of title.

On June 17, 1965, the court declared the defendants in default for their failure to appeal at the hearing
set for that day .

Because of this, Adarne against the respondent Atty. Damian V. Aldaba an Administrative action against
the respondent attorney for gross negligence and misconduct, for failure to give his entire devotion to the
interest of his client, warm zeal in the . maintenance and defense of his rights, and exertion of his utmost
learning and ability in the prosecution and defense of his client, and for not taking steps to protect the
interests of his client in the face of an adverse decision
Issues and Holding:
WON Respondent Atty. ALDABA is guilty of misconduct for failing to attend the hearing. – NO.

The judgment by default rendered against the complainant cannot be attributed to the respondent
attorney. The blame lies with the complainant for having engaged the services of several lawyers to handle
his case without formally withdrawing the authority he had given to them to appear in his behalf as to
place the responsibility upon the respondent.

The rule followed on matters of substitution of attorneys as laid down by this Court is that no substitution
of attorneys will be allowed unless there be filed: (1) a written application for such substitution; (2) the
written consent of the client; (3) the written consent of the attorney substituted; and (4) in case such
written consent can not be secured, there must be filed with the application proof of service of notice
of such motion upon the attorney to be substituted, in the manner prescribed by the rules.

The respondent honestly believed that he had appeared for the complainant only for a special purpose
and that the complainant had agreed to contact his attorney of record to handle his case after the
hearing of October 23, 1964, so that he did nothing more about it. It was neither gross negligence nor
omission to have entertained such belief. An attorney is not bound to exercise extraordinary diligence, but
only a reasonable degree of care and skill.
Torts – August 30

Dispositive: WHEREFORE, the present administrative complaint is hereby DISMISSEDz

Isaac v. A.L. Ammen Transportation Co., Inc., G.R. No. L-9671, August 23, 1957
Doctrine: A common carrier is presumed to be at fault or to have acted negligently in case of death of, or
injury to, passengers, it being its duty to prove that it exercised extraordinary diligence

Facts:
AL Ammen Transportation was engaged in transporting passengers.

Cesar Isaac boarded a passenger bus of AL Ammen, paying the required fare from Albay bound for
Camarines Sur, but before reaching the destination, the bus collided with a pick-up type vehicle coming
from the opposite direction. As a result, Isaac’s left arm was completely severed and the severed portion
fell inside the bus.

Isaac was rushed to a hospital in Iriga, Cam Sur where he was given blood transfusion to save his life.
After several transfers to other hospitals and treatments for several months, Isaac incurred expenses
amounting to P623.40, excluding medical fees which were paid by AL Ammen.

Argument of Petitioner: mIsaac then filed an action against AL Ammen for damages on the ground that
the collision was caused by the incompetence and recklessness of the driver of the bus and that AL
Ammen breached the contract of carriage for failure to transport Isaac safely to his destination. Isaac
prayed for Moral damages, loss of earnings, attorney’s fees, medical expenses and the cost of the
artificial arm.

Argument of Respondent: AL Ammen on the other hand alleges that the injury suffered was due entirely
to the fault or negligence of the driver of the pick-up car and to the contributory negligence of Isaac
himself. AL Ammen further claims that the accident, which resulted in the injury of plaintiff, is one which
defendant could not foresee or, though foreseen, was inevitable.

Trial Court: Trial Court: dismissed complaint; in favor of AL Ammen; the collision occurred due to the
negligence of the driver of the pick-up car and not to that of the driver of the bus it appearing that the
latter did everything he could to avoid the same but that notwithstanding his efforts, he was not able to
avoid it. Hence, this appeal.

Issues and Holding:

1. WON AL Ammen is liable observed extraordinary diligence or the utmost diligence of every cautious
person. - YES. The Bus Driver exercised extra-ordinary diligence, which redounds to the benefit of the
passenger Isaac.
a. Based on art. 1733, 1755 and 1756 of the civil code, the following principles governing the
liability of the common carrier can be gleaned:
i. The liability of a carrier is contractual and arises upon breach of its obligation; there is breach
if it fails to exert extraordinary diligence according to all the circumstances of each case
Torts – August 30

ii. Carrier is obliged to carry its passenger with the utmost diligence of a very cautious person,
having due regard for all the circumstances
iii. A carrier is presumed to be at fault or to have acted negligently in case of death of, or injury
to, passengers, it being its duty to prove that it exercised extraordinary diligence.
iv. Carrier is not an insurer against all risks of travel
b. The bus driver exercised extraordinary diligence when upon seeing the Pickup Truck, which was
heading towards them at full speed, he swerved the bus to the very right of the road until its
front and rear wheels have gone over the pile of stones or gravel situated on the rampart of the
road. Said driver could not move the bus farther right and run over a greater portion of the pile,
the peak of which was about 3 feet high, without endangering the safety of his passengers. And
notwithstanding all these efforts, the pick-up car hit the rear left side of the bus.
c. Isaac’s contention that that the bus driver should have stopped and waited for the vehicle from
the opposite direction to pass is not correct: (The bus driver acted in accordance to the
Emergency Rule)
i. “Where a carrier’s employee is confronted with a sudden emergency, the fact that he is
obliged to act quickly and without a chance for deliberation must be taken into account, and
he is not held to the same degree of care as any ordinary prudent person would exercise
only such care as any ordinary prudent person would exercise under like circumstances and
conditions, and the failure on his part to exercise the best judgment the case renders
possible does not establish lack of care and skill on his part which renders the company,
liable”
d. Considering the attendant circumstances, the driver of the bus has done what a prudent man
could have done to avoid the collision and relieves the defendant from liability
2. WON there was contributory negligence on the part of Isaac - There was contributory negligence on
the part of Isaac which mitigates his position.
a. Upon boarding, Isaac placed himself in such a position as to expose his arm to injury, which is
the position he was in when the collision happened. He rest his arm on the window sill but with
his left elbow outside the window. Had he not placed his left arm on the window sill with a
portion thereof protruding outside, perhaps the injury would have been avoided as is the case
with the other passenger. It is to be noted that appellant was the only victim of the collision.
b. Notably, it is only the plaintiff who was the victim of the collision
c. It has been held that:
i. “It is negligence per se for a passenger on a railroad voluntarily or inadvertently to protrude
his arm, hand, elbow, or any other part of his body through the window of a moving car
beyond the outer edge of the window or outer surface of the car, so as to come in contact
with objects or obstacles near the track, and that no recovery can be had for an injury which
but for such negligence would not have been sustained
Dispositive: Wherefore, the decision appealed from is affirmed, with cost against appellant.

Ridjo Tape & Chemical Corp., v. Court of Appeals, G.R. No. 126074, February 24, 1998
Doctrine: Public utilities have the obligation to discharge its functions with utmost care and diligence.
Facts:
MERALCO demanded payment from Ridjo Tape & Chemical Corp for their unregistered electric
consumption from November 1990 – February 1991 amounting to P415,000. Again, MERALCO also
demanded that Ridjo Paper Corp pay their unregistered electric consumption for the period of July 1991
– April 1992 in the amount of P89,000.
Torts – August 30

MERALCO sent them notices to settle their account or it would be forced to disconnect their electricity..

Argument of Petitioners: Their contract provides: In the event of the stoppage or the failure by any meter
to register the full amount of energy consumed, the Customer shall be billed for such period on an
estimated consumption based upon his use of energy in a similar period of like use”

Argument of Respondent: To follow the interpretation advanced by petitioners would constitute an

unjust enrichment in favor of its customers
Issues and Holding:
WON Meralco was negligent. – YES, and it must therefore bear its own damage.However, to avoid unjust
enrichment on the part of Ridjo, the Court still ordered it to pay for a reduced amount of electric charges.

MERALCO was negligent for which it must bear the consequences. Its failure to make the necessary
repairs and replacement of the defective electric meter installed within the premises of petitioners was
obviously the proximate cause of the instant dispute between the parties.

Public utilities should be put on notice, as a deterrent, that if they completely disregard their duty of
keeping their electric meters in serviceable condition, they run the risk of forfeiting, by reason of their
negligence, amounts originally due from their customers.

The Court cannot sanction a situation wherein the defects in the electric meter are allowed to continue
indefinitely until suddenly the public utilities concerned demand payment for the unrecorded electricity
utilized when, in the first place, they should have remedied the situation immediately. If we turn a blind
eye on MERALCO's omission, it may courage negligence on the part of public utilities, to the detriment
of the consuming public.

However, it is to be expected that the Ridjo Corporations were consciously aware that these devices or
equipment are susceptible to defects and mechanical failure. It is difficult to believe that the Ridjo
Corporations were ignorant of the fact that stoppages in electric meters can also result from inherent
defects or flaws and not only from tampering or intentional mishandling. Since they were also negligent
in failing to check their meters, it is only fair that they pay for the electricity that they used.
Dispositive: WHEREFORE, in view of the foregoing, the decision of the Court of Appeals in CA-G.R. CV No.
44010 is hereby MODIFIED. Petitioners are ordered to pay MERALCO the amount P168,342.75,
representing its average electric consumption three months prior to the period in controversy. No costs.