G.docx

Tort: taken directly from the French and is derivation of the Latin word ―torquere‖ meaning ―to twist‖ -common law: an unlawful violation of private right, not created by contract, and which gives rise to an action for damages -an act or omission producing an injury to another, without any previous existing lawful relation of which the said act or omission may be said to be a natural outgrowth or incident (other definitions not discussed) -no universal formula for torts liability -includes intentional tort, negligence, and strict liability * A tort is a wrong, a commission or omission of a person who has no right and inflicts direct or indirect injury to another’s person, property or reputation. KINDS OF WRONG: 1. Civil: Involves a violation of private right Criminal: offense against the public and is penalized by law as a crime or felony. 2. Intentional: when the defendant is consciously aware that: 1. his conduct is wrongful or negligent 2. Or if the defendant does not intend an invasion of P’s right 3. But is aware that he is taking aan unreasonable risk 3. Reckless or wanton wrong: it is a specie of negligence which imports knowledge and consciousness of the risk of harm resulting from his conduct as to be equivalent to an intentional wrong. (2) GENERAL CLASSES OF TORTS: 1. PROPERTY TORTS It embraces all injuries and damages to property whether personal or real 2. PERSONAL TORTS It includes all injuries to person, whether to the body, repuation or feelings. REQUISITE FOR A QUASI-DELICT TO ATTACHED: 1. Right of the Plaintiff to be respected 2. Obligation on the part of defendant to respect such right 3. Act or Omission 4. Damage DEFINITIONS: Injury: It is the legal invasion of a legal right Damage: It is the loss, hurt or harm which results from injury Damages: It is the recompense or compensation awarded for the damage suffered.

Act: It is any bodily movement tending to produce some effect in the external world Q: IS QD SAME WITH TORTS? A: No. Quasi-delict, or culpa aquiliana or extra-contractual culpa, is article 2176 of the Civil Code which provides: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this chapter. While torts is so broad that it covers those Q: WHO IS A TORTFEASOR? Defendant can either be natural or artificial beings. Thus, a corporation can be civilly liable in the same manner as natural persons. A corporation may be held directly and primarily liable under Vicarious Liability or direct corporate responsibility. With respect to close corporations, stockholders are personally who are involved in the operation of the corporation may be personally liable for corporate torts. Q: WHAT IS THE LIABILITY OF A TORTFEASOR? The responsibility of 2 or more persons who are liable for QD is Solidary (relationship created by law) under A2194. Each are liable as principals, to the same extent and in the same manner as if they had performed the wrongful act themselves. Joint Tortfeasors: Those who command, instigate, promote, encourage, cooperate in, aid or abet in the commission of a tort or approve of it if done for their benefit. Those who act together to commit wrongs or acts which cause injury. Q: WHAT ARE THE ELEMENTS OF QD? Liability for quasi-delict under this article requires the following conditions: (1) an unlawful act or omission amounting to a fault or negligence, imputable to the defendant; (2) damage or injury to the plaintiff; (3) such damage or injury being the natural and probable, or direct and immediate consequence of the defendant’s wrongful act or omission; and (4) there being no pre-existing contractual relation between the plaintiff and defendant Q: WHAT IS THE DIFFERENCE BETWEEN FAULT AND NEGLIGENCE?

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Article 1173 of the Civil Code defines negligence as 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. If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. However, the degree of care and diligence required of a common carrier is extraordinary diligence. Fault signifies voluntary act or omission causing damages to the right of another giving rise to an obligation of the actor to repair such damage. Fault is of two (2) kinds: i. Substantive and independent fault in that there is no pre-existing relation. This is the one referred to Art. 2176 NCC and source of an obligation. It is also known as culpa extra contractual or culpa aquiliana covered by Art. 2176 NCC. ii. Fault as an incident in the performance of an obligation existing – is known as contractual fault or culpa contractual governed by Art. 1170-73 of NCC. Negligence consist in the omission to do certain acts which result to the damage to another. As to Intent to cause damage to another thru an act or omission: a. It is culpa absence such intent, the actor’s liability is civil governed by the Civil Code. b. It is dolo presence of such intent and the act or omission becomes crime and the actor’s civil liability is governed by the provisions of the Revised Penal Code (2) degrees of negligence: 1. Simple: want of slight care and diligence 2. Gross: there’s galringly obvious want of diligence and implies coscious indifference to consequences Distinctions – Importance of knowing these distinctions lies in filing the proper cause of action against the tortfessor. The same act or omission which is faulty or negligent causing damage produces civil liability arising from a crime under the Revised Penal Code or create an action for quasi delict or culpa contractual under the Civil Code. (Andamo vs IAC, 191 SCRA 203). NEGLIGENCE - plaintiff must prove negligence of defendant Exceptions: In cases where negligence is presumed or 
imputed by law - this is only 
rebuttable/presumption juris tantum 
 Principle of res ipsa loquitur (the thing speaks for itself) - grounded on the difficulty in proving thru competent evidence, public 
policy considerations 


Q: WHAT IS THE DOCTRINE OF STRICT LIABILITY? It holds that a person may be held liable independent of fault, negligence or intent after establishing certain facts specified by law. It includes liability for conversion and for injuries caused by animals, ultra-hazardous activities and nuisance. It applies when a defendant places another person in danger, even in the absence of negligence, simply because he is in possession of a dangerous product, animal or weapon. The plaintiff need not prove negligence. 1. POSSESSOR OF AN ANIMAL • The possessor of an animal or whoever may make use of the same is responsible for the damage which it may cause • Exceptions: a. Force majeure b. Fault of the injured/damaged person 2. OWNER OF MOTOR VEHICLE • In motor vehicle mishap, the owner is solidarily liable with the driver if: a. he was in the vehicle, and b. could have, through due diligence, prevented the misfortune • A Driver is Presumed Negligent by law If: a. he had been found guilty or reckless driving or violating traffic regulations at least twice within the next preceding two months. b. at the time of the mishap, he was violating any traffic regulation. NOTE: Every owner of a motor vehicle shall file with the proper government office a bond executed by a government-controlled corporation or office, to answer for damages to third persons. 3. MANUFACTURERS & PROCESSORS OF FOODSTUFFS, DRINKS, TOILET ARTICLES & SIMILAR GOODS • They are liable for death and injuries caused by

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any noxious or harmful substances used although no contractual relation exists between them and the consumers 4. DEFENDANT IN POSSESSION OF DANGEROUS WEAPONS OR SUBSTANCES, SUCH AS FIREARMS AND POISON • There is prima facie presumption of negligence on the part of defendant if death or injury results from such possession • EXCEPTION: The possession or use thereof is indispensable in his occupation or business 5. PROVINCES, CITIES & MUNICIPALITIES • Shall be liable for damages for the death or injuries suffered by any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision 6. PROPRIETOR OF BUILDING OR STRUCTURE • Responsible for the damages resulting from any of the ff.: a. Total or partial collapse of building or structure if due to lack of necessary repairs b. Explosion of machinery which has not been taken cared of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place c. By excessive smoke, which may be harmful to persons or property d. By falling of trees situated at or near highways or lanes, if not caused by force majeure e. By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place 7. ENGINEER, ARCHITECT OR CONTRACTOR • If damage of building or structure is caused by defect in construction which happens within 15

years from construction; action must be brought within 10 years from collapse 8. HEAD OF FAMILY THAT LIVES IN A BUILDING OR PART THEREOF • Liable for damages caused by things thrown or falling from the same Person Vicariously Liable for Acts of Others (Art 2180) The basis of vicarious liability is responsibility of a person over other persons under their legal authority, control or influence. Violation or remission of duty arising from such relationship makes them liable for damages caused by other person under their care or charge. 1. Parent – father, if dead or incapacitated, mother are responsible for damages caused by minor children living in their company (Art 2180 NCC) 2. Guardians – are liable for damages caused by the minors or incapacitated person who are under their authority and live in their company. (ibid) Art 221. Family Code provides that parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the act or omission or their unemancipated children living in their company and under parental authority subject to the appropriate defenses provided by law. NOTE: Persons liable for the act of minors other than parents. a. Those exercising substitute parental authority b. Surviving grandparents c. Oldest sibling, over 21 years old unless unfit or unqualified d. Child’s actual custodian, over 21 years old unless unfit or disqualified The Basis of the civil liability which is primary-direct and solidary imposed by law is the necessary consequence of parental authority exercise over their children. This authority imposed a duty upon parents to support them, keep them company, educate and instruct them, and grand the right to correcting punish with moderation. The parents are relieved of this liability only upon proof that they have exercise the diligence of a good father of a family (Exconde vs Capuno, 101 Phil 843) to prevent damage. Case: Tamagro vs CA, 209 SCRA 519

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Facts: a 10 year old boy shot and air gun a girl resulting to her death. The boy was acquitted in the criminal suit for having acted without discernment. However a civil suit was filed against the boy’s parent. Held: The Anglo-American Tort Principle of parental liability is a specie of Vicarious Liability, also known as Imputed Liability. This liability is made natural as logical consequences of the duties and responsibilities of parents exercising parental authority which includes controlling, disciplining and instructing their children. In this jurisdiction the parent’s liability is vested by law (NCC and FC) which assumes that when a minor or unemancipated child living with their parent, commits a tortuous act, the parents are presumed negligent in the performance of their duty to supervice the children under their custody. A presumption which muris tantum, not juris es de jure, rebuttableovercome by proof having exercised and observed all the diligence of a good father of a family (diligentissimi patris familias). Note in this case the boy was adopted but it was the natural parent who were held liable as they the actual physical custody of the boy at the time of the shooting. The adoption was approved only after the shooting although the adoption proceeding was filed before the shooting and in between the time the adaptor was abroad.

Where the minor or insane person causing damage to others has no parent or guardian/ the minor or insane person’s property shall answer the damage caused. (Art 2182) 3. Teachers or Heads of school of arts and trade (non-academic) are liable for damages caused by their pupils and students or apprentices remaining under custody (Art 2180 NCC) Cases: Exconda vs Capuno, 201 Phil 843 Facts: 15 year old elementary student after attending Rizal Day Parade boarded a jeep on the way home. He took over the wheel and driving recklessly caused the vehicle to turn over resulting to death of two passengers. Held: Upon being found guilty of double homicide with reckless imprudence filed against him, a separate civil action was filed whereby the father was hold solidarily liable for damages under Art 1903 nor Art 2180 NCC. The school head was held no liable being academic school. Mercando vs CA, 108 Phil 414, 1960 Facts: A student of Lourdes Catholic School in QC during recess cut a classmate with razor blade. Parent of the injured student sued the culprit for damages.

Case: Cuadra vs Monfort, 35 SCRA 160 Facts: Grade 6 pupil Maria C and Maria M were assigned by teacher to weed the grass in the school premises. M found a plastic headband which she aloud she found an earthworm and tossed it to C hitting the latter right eyes resulting to loss of said eye. Held: The underlying basis of the liability imposed by Art 2176 is the fault or negligence accompanying the act or omission there being no willfulness or intent to cause damage thereby and in Art 2180 providing vicarious liability of parent although primarily. It was not shown that the parent could have prevented the damage as their child was in school and they have the right to expect their child to be under the care and supervision of the teacher. Beside the act was an innocent prank and unusual among children at play and which no parent could have any special reason to anticipate much less guard against. Parent not held liable.

Held: Reiterated Exconda case – school not liable as it was not an establishment of arts and trade (aside from the fact that it was not sued). Parent was held to be liable. Palisoc vs Brillantes. 41 SCRA 548, 1971 Facts: A 16 year old student of Manila Technical Institute was killed in a fist fight by a person who was not boarding in the school and of majority age. Held: The school is being non-academic (arts and trade), the head of the school and teacher in charge were solidarily liable with the assailant. Amadora vs CA 160 SCRA 315, 1988 J. Cruz Facts: It was summer of 1972 Alfredo Amadora about to graduate at the Colegio de San Jose-Recoletes was shot to death by his classmate Pablito Daffon. Alfredo went to the school to submit his “Report in Physic”.

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Held: Art 2180 NCC applies to all schools, academic or non-academic. Teachers are liable for acts of their student except where the school is technical in nature (arts and trade establishment) in which case the head thereof shall be answerable. “There is really no substantial difference distinction between the academic and non-academic schools in so far as torts committed by their students are concerned. The same vigilance is expected from the teacher over the student under their control and supervision, whatever the nature of the school where he is teaching”. “x x x x The distinction no longer obtains at present. x x x “ The student is in the custody of the school authorities as long as he is under the control and influence of the school and within its premises, whether the semester has not ended, or has ended or has not yet begun. The term “custody” signifies that the student is within the control and influence of the school authorities. The teacher in charge is the one designated by the dean, principal, or other administrative superior to exercise supervision over the pupils or students in the specific classes or sections to which they are assigned. It is not necessary that at the time of the injury, the teacher is physically present and in a position to prevent it. Thus, for injuries caused by the student, the teacher and not the parent shall be held responsible if the tort was committed within the premises of the school at any time when its authority could be validly exercised over him. In any event, the school may be held to answer for the acts of its teacher or the head thereof under the general principle of respondent superior, but it may exculpate itself from liability by proof that it had exercised the diligence of a bonus paterfamilias. Such defense they had taken necessary precautions to prevent the injury complained of and thus be exonerated from liability imposed by Art 2180. Basis of teacher’s vicarious liability is, as such, they acting in Loco Parentis (in place of parents). However teachers are not expected to have the same measure of responsibility as that imposed on parent for their influence over the child is not equal in degree. x x x The parent can instill more lasting discipline more lasting disciple on the child than the teacher and so should be held to a greater accountability than the teacher or the head for the tort committed by the child. As the teacher was not shown to have been negligent nor the school remised in the discharged of their duties, they were exonerated of liability. (Note – the court view on increasing students activism likely causing violence resulting to injuries, in or out of the school premises – J. Guttierez, Jr concurringly

said many student x x x view some teachers as part of the bourgeois and or reactionary group whose advice on behavior deportment and other non-academic matters is not only resented but actively rejected. It seems most unfair to hold teacher liable on a presumption juris tantum of negligence for acts of students even under circumstances where strictly speaking there could be no in loco parentis relationship. The provision of Art 2180 NCC involved in this case has outlived its purpose. The court cannot make law, it can only apply the law with its imperfections. However the court can suggest that such a law should be amended or repealed. 4. The state is responsible when it acts thru a special agent but not when the damage has been caused by the official to whom the task is done properly pertains (i.e. function or duty) in which case Art 2176 is applied.

As a general rule, the state cannot be sued without its consent. (principle of immunity from suit) This “consent” is manifested in legislative acts – enactment of laws making the state suable as in this specific provision of the Civil Code, in RA 7160 – LGC of 1991 providing that LGU and their officials are not exempt from liability for death or injury to person or damage to property (Sec 24). The state – the state may not be sued without its consent. (Sec 3 Art XVI ’87 Constitution) This is the doctrine of immunity from suit or principle of non liability (enuciated in the 1910 case of Forbes vs Chuco Tiaco & Crossfield, 16 Phil 534) was originally founded upon an old maxim that “The King can do no wrong” prevailing during the medieval England when the King was generally accepted as the State himself. With the development of democratic thoughts and institution, the concept eventually lost is moral force, the natural person-king is no longer the state but merely its representative who may be removed by the people. i.e. thru impeachment. The modern basis of the principle is that “immunity from suit is inherent in all sovereign states. The reason is based on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. (Kawananakoa vs Plyblank, 206 US 349 cited by Hector S. Deleon, 2002 Ed Textbook on the Phil Const) The state (Govt) may be sued only with its consent which may be given i. expressly – thru duly enacted statutes such as the ff: a. CA NO. 327 amended by PD 14445 providing conditions under which the state may be sued b. Administrative Code of 1987 c. Civil Code Art 2180 – state acting thru special agent

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d. Charters of public corp vesting them with power to sue and be sued, eg. RA 7610 – LGC ii. Impliedly as in the ff cases: a. When the Govt sues to recover money from individual who has claim against it, the latter may set a counterclaim. b. When the Govt engages in commercial business or enters into a contract, it can be sued upon the theory that it has descended to the level of private individual from which it can be implied that its has given its consent to be sued under the contract and thereby divested itself of its sovereign character and its immunity from suits. (National Airport Corp vs Teodoro, 91 Phil 203, Manila Hotel Employees Assn. Vs Manila Hotel, 73 Phil 347)

The state assumes the role of an ordinary employer and will be held liable for the special agent’s torts (Fontanilla vs Malianan, ‘89)

The term State used in Art 2180 NCC refers to the Govt of the Republic of the Philippines defined in Sec 2, 1987 Revised Administrative Code as the Corporate Governmental entity thru which the functions of the govts are exercised throughout the Phils, which included the various arms thru which political authority is made effective in the Phils such as the autonomous regions and the local govt units (province, city, municipality and barangay). The term does not include agency or instrumentality or other entity which their enabling laws have invested with juridical personality separate and distinct from that of the Republic of the Philippines (Fontanilla vs Maliaman, 194 SCRA 495 J. Paras)

Held: the state or govt agency performing governmental function may be held liable for tort committed by its employees when it acts thru a special agent.

The functions of govt is classified into (a) governmental or constituent involving exercise of sovereignty and is compulsory, (b) proprietary or ministrant which is optional (Fontanilla vs Maliaman)

Thus NIA was held responsible for the negligent act of its employee Garcia who is not a special agent. (J. Padilla separate opinion in Fontanilla vs Maliaman Resolution in 1991, 194 SCRA 499)

The state – for the governmental function – the state can not be sued without its consent. For the proprietary function of the govt may be sued without its consent which is presumed have been given in advance.

Palafox vs Ilocos Norte Prov, 102 Phil 1186

The state may be sued only thru its Special Agent but not when the damage had been caused by the official to whom properly it pertained to do the act performed (Merritt Fontanilla case, 194 SCRA 503)

Facts: Hugo Garcia is a regular employee of National Irrigation Administration (NIA) a govt agency created by its charter RA 3601 amended by PD 552 for the purpose of undertaking integrated irrigation project. Garcia driving the agency official pickup bumped a bicycle ridden by Fontanilla resulting to his death. The victim’s parent filed a civil action against NIA and its driver Garcia who was found guilty of driving recklessly. NIA was ordered to pay, NIA appealed raising the issue that as govt agency performing govt function is not liable as being a part of the state, cannot be sued.

While NIA is a govt agency performing governmental function, however it is suable because its charter provides that it may be sue or be sued, thus consent of the state for NIA to be sued has already given, so that the rule on immunity from suit normally extended to govt agencies performing governmental functions is no longer available to NIA. By waiving that immunity from suit in its charter, NIA open itself to suits.

Facts: Province’s truck on its was to the river for gravel and sands to be used in the construction and repair of its road (a governmental function) runs over a pedestrian resulting to the latter’s death. Held: The province was not liable because its employee driver at the time of the accident was performing his regular duties and is not a special agent.

Special Agents are of two kinds Rosete vs The Auditor General, 81 Phil 453 a. Public officials with a particular assigned tasks but is specially commissioned to do such task foreign to his usual assigned governmental function. b. Private person – not a public official, commissioned to perform nongovernmental function. A govt commissioning a private person for a special task is acting thru special agent within the meaning of Art 2180 NCC

Facts: A fire broke out in the Emergency Control Administration (a govt office) due to the negligence of its employee in igniting recklessly his cigarette lighter near a drum of gasoline in the office’s warehouse resulting to destruction of buildings adjoining the warehouse. Victims sued the officers of the Emergency Control Admin.

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Held: As ECA or its officers were shown to have acted not as special agent of the govt in storing gasoline in the warehouse, the Govt is not responsible for the damages caused thru such negligence. Republic vs Palacio, 23 SCRA 899 Facts: The Irrigation Service Unit, an office/agency under the Dept of Public Works and Communication was sued for tort and the Sheriff of Manila garnished the deposit of the ISU in the PNB, Manila. Held: The ISU being an office in the govt and its fund is a public fund. It is being shown that the ISU was guilty of tort, however the sate not its fund is not liable because the ISU was not a special agent. Under Art 2180 the state is liable only for tort caused by its special agent. GAA vs CA, 167 SCRA 28, ‘88 Facts: GAA charges fees for the use of the Airport’s terrace or viewing deck where one gets a better view of arriving and departing passengers at the airport. The deck had an elevated portion (4 inches) which caused a viewer to fall breaking his thigh bone. He sued CAA for hospital expenses. CAA raised the defense of being a govt agency subject of immunity from suit. Held: While CAA is a govt agency however it is performing a proprietary functions – business and under its charter it is empowered to sue and be sued. Thus it cannot avail the immunity from suit accorded to govt agencies performing strictly governmental function. (Malong vs PNR, 138 SCRA 63 which ruled that PNR is not immune from suit as it does not exercise sovereignty but purely proprietary – business function) NIA vs IAC, 214 SCRA 35, ‘92 Held: Damages caused by the officials of NIA for its negligence in the construction of the canal which caused damages to nearby land, NIA is liable under Art 2176 NCC as NIA’s official are not special agent in performing their official assigned duties and functions. LGU are liable for damages for the death or injuries suffered by any person by reason of defective conditions of roads, streets, bridges, public building and other public works under their control or supervision. (Art 2189)

LGU’s and their official are not exempt from liability for death or injury to persons or damage to property. (Sec 24, RA 7160 LGC of 1991) Municipality of San Fernando, La Union vas Firme, 195 SCRA 692, ‘91 Facts: Municipal’s dump truck on way to the Naguilian River to get gravel and sands for the repair of roads (a governmental function) collided with a passenger jeep resulting the death of passenger of the latter vehicle. Civil action was filed against the Municipality. Held: Municipalities being agencies of the State, when performing governmental functions enjoy sovereignty and thus immune from suit unless it is shown that they are performing proprietary function. However, they may be held liable if it can be shown acting thru a special agent. The Municipality’s driver is not a special agent and so the Municipal is not liable, only the driver. Palma vs Graciano, 99 Phil 92 Facts: A governor and a Mayor filed a criminal charge which was dismissed for being groundless. They were sued Held: The prosecution of a crime is a governmental function, not a corporation action. In the discharged thereof, the Province or City or Municipality is not liable for tortuous acts of its officers. Only the public officers acting tortuously (beyond the scope of their authority) are personally liable because the mantle of immunity from suit accorded to their office is not available for their tortuous acts. Republic vs Sandoval, 20 SCRA 124, 1993 Facts: Jan 22, 1987 known as Black Saturday – the Mendiola Massacre of Rallyist who were shot as they march toward Malacañang. Heirs of the dead rallyist sued the Republic and Military Officers and soldiers. Judge Sandoval dismiss their suit invoking State’s immunity from suit. Held: Instances when the suit against the state a. when the Republic is sued by name b. when the suit is against an unincorporated govt agency c. when the suit is against a govt officer but the ultimate liability will fall on the state and not on the officer

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d. when the govt perpetrated injustice on the citizen (De los Santos vs IAC, 223 SCRA 11) In this case, the state is not liable for the civil liability arising from criminal acts of the military for violating BP Blg 880 which prohibits unnecessary firing in dispensing public assembly. The doctrine of immunity from suit will not be applied to the military officers who have acted beyond the scope of their authority because in so doing they are deemed to ceased to be a public officers but a private person liable like any other private persons for doing wrongful acts.

a. Owner and Manager of establishment or enterprises are liable for damage caused by their employees in the service of employment or on the occasion of their functions. b. Employer of household helper though not engaged in any business or industry are liable for damages caused by helper acting within the scope of their assigned tasks. EMPLOYERS - Employers shall be liable for damages caused by their:

De los Santos vs IAC, 223 SCRA 11, ‘93

a. employees and 


Facts: Min of Public works while carrying on its project of constructing roads and creeks took over the portion of privately owned land without or against the consent of the owner who sued. Immunity from suit was invoked.

b. household helpers 
 c. who are acting w/in the scope of their assigned task even though the former are

Held: when a govt thru its agency takes away private property without going to legal process of expropriation and paying just compensation, a suit may be properly maintained against the govt. The civil action may be based under Art 32 NCC and the constitutional provisions on rights against privation of property without due process of law and without just compensation. The doctrine of immunity from suit cannot serve as an instrument for the perpetration of injustice on its citizens. (J. Romero)

not engaged in any business or industry (unlike in RPC – subsidiary liability of employer attaches in case of insolvency of employer for as long as the employer is engaged in business/industry) 
 • DEFENSES AVAILABLE TO EMPLOYERS: a. exercise of due diligence ins election and supervision of employees 


Resume on State’s liability for tort The state is liable fro the tortuous acts only of its special agent but not of its public officials in the performance of their assigned usual duties and functions who are liable under Art 2176 NCC and not Art 2180 NCC

b. act/omission was made outside working 
hours and in violation of company's

Rationale: there can be no legal rights as against the authority that grants such rights. This is known as doctrine of immunity from suit which is very essence of sovereignty. It is expressed in the constitution that the state cannot be sued without its consent (Sec 3, Art XVI). The state’s consent is manifested expressly in the form its legislative enactments of statues (Art 2180 NCC, Sec 24 LGC of 1991, Act No 3083 relating money claims arising from contract) and impliedly when the state enters into contract in its proprietary or private capacity, or when the sate itself sues, opens itself to counterclaim, or perpetrate injustice to its citizen.

Basis of Liability is not “Respondent Superior (Anglo-American doctrine where the negligence of the employee is conclusively presumed to be the negligence of the employer) but on the relationship of Pater-Familias, (master-servant) a theory basing the liability of the master ultimately on his own negligence and not that of the servant as manifested in his negligence in the selection of their employeeservant (culpa eligiendo) or in the supervision over their employee-servants (culpa in vigilando). This negligence is prima facie presumption juris tantum- overcome or rebutted by proof that they have observed and exercised all the diligence of a good father of a family (diligantissimi bonus fater familias). The theory is deduced from the last par of Art 2180 NCC providing the responsibility shall cease upon proof of exercise of the diligence of a good father of a family to prevent the damage.

5.

Employers: Master

rules and regulations

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The term “Manager” in Art 2180 is used in the sense of employer, not employee. Case: Phil Rabbit Bus Lines Inc vs Phil Am Forwarder, Mar 25, 1975 Facts: An action for damages was brought against Phil Am Forwarded and its Manager Balingit for negligent act of their driver. Balingit moved to dismiss the action against him for though he was manager, however, he was just an employee of the company. Held: Balingit is not liable because he was just a mere employee though designated as “Manager”. The relationship of employer-employee or master-servant must first be established to exist before the employer/master will be held liable. Case: Phil Shell Petroleum Co vs CA, 221 SCRA 389

1. Direct and primary – solidary, employer is sue even without suing the employee 2. Defense of exercise of diligence of a good father of the family to be relieve of liability 3. Employer is liable even if not engaged in business 4. Proof of negligence is by mere preponderance of evidence Revised Penal Code 1. Subsidiary – arising after the employee’s guilt 2. Diligence of a good father is not a defense 3. Must prove employer is engaged in business 4. Proof beyond reasonable doubt of evidence

5. a. b.

Owners of Motor vehicle (Art 2184) Owner is in the motor vehicle is solidary liable with his driver Owner is not in the motor vehicle with the driver is subsidiary liable

Facts: Gas station proprietor was sued for selling adulterated gas with water. He settled amicably the suit and then Phil Shell for the negligence of Feliciano who was hired in undertaking hydro pressure test in the underground storage tank which was cracked causing water to seep into the tank.

Case: Chapman vs Underwood, 27 Phil 374

Held: Phil Shell is not liable because Feliciano was not its employee. It was shown that Phil Shell has no control over Feliciano who do business of his own, used his own tools and worked on his own time charging a fixed lump sum for every piece of work. Feliciano was an independent contractor and not an employee and thus he alone is liable.

Held: Where the owner had reasonable opportunity to observe his driver and to direct the latter to cease there from, becomes himself responsible for such acts. On the other hand, if the driver, by sudden act of negligence and without opportunity to prevent the acts or its continuance, the owner is not responsible.

Facts: Underwood riding in his car and his driver suddenly turned to the wrong side of the street and hit the plaintiff. Driver was negligent. Was the owner liable too?

Caedo vs Tu Khe Thai, 26 SCRA 419 Case: Cuison vs Norton & Harisson Co, 55 Phil 18 Facts: Ora was employed by defendant company charged in directing and controlling transport business of the Co. On the day of the accident, one of the company’s truck was leaded with logs which were not properly tied. The ties were loosened during the trip. They stopped to rearrange the ties but before they could do so a child passing beside the truck was hit by a log falling from the truck. Held: Ora beingan employee of the company, the latter is responsible for the negligence in the loading of logs which caused the death of the boy. Distinction of employer’s liability under Art 2180 NCC and Revised Penal Code. Civil Code

Facts: Yu was riding in his Cadillac driven by Bernardo saw a carratela about 8 meters away. Instead of slowing down veered to the left to overtake and in so doing the car hit the carratella’s left wheel and skidded obliquely hitting the on coming car of Caedo who despite slackened speed to avoid the collision was hit resulting to the injuries of Caedo and his passengers. Yu’s driver was negligent. Was Yu liable? Held: The basis of the master/employer’s liability in civil law is not respondent superior but rather the relationship of Pater Familias. The theory is that ultimately the negligence of the servant, if known to the master and susceptible of timely correction, reflects the master’s negligence if he fails to correct it in order to prevent the injury or damage (J. Makalintal)

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The owner of the car Yu was not liable because he did not see the carretela at a distance, however, he could not anticipated his driver’s sudden decision to pass the carretela. The time element was such that there was not reasonable opportunity for Yu to assess the danger involved and warn the driver accordingly.

KINDS OF NEGLIGENCE 1. Quasi delict (Art. 2176 NCC) 2. Criminal negligence (Art. 356 RPC) 3. Contractual negligence (NCC provisions on contracts particularly Arts. 1170 to 1174).

Former owner of Motor Vehicle are liable for the tortuous acts of the new owner

Q: NEGLIGENCE AS A CONDUCT V. NEGLIGENCE AS A STATE OF MIND

Case: Equitable Leasing Corp vs Suyom, Sept 5, 2002

Negligence is conduct, not a state of mind or the use of sound judgment.

Facts: “Equitable” sold to Lim a Fuso tractor. After the sale’s price was fully paid, a deed of sale executed by “Equitable” in favor of Lim who had not registered the sale with the LTO. While the tractor was driven by Lim’s employee, it rammed into a house causing death and injuries and damages.

With regard as to which one is punisahble, it is the negligence as a conduct. Which one falls under QD?

Held: This court (SC) has consistently held that regardless of the sales made of motor vehicle, the registered owner is the lawful operator insofar as the public and third persons are concerned. Consequently it is directly and primary liable for the consequences of its operation in contemplation of the law. The owner of record is the employer of the driver while the actual owner is considered as merely its agent. Since “Equitable” remained the registered owner, it could not escape primary liability. ARTICLES 1172-1173 Art. 1172. Responsibility arising from negligence in the performance of every kind of obligation is also demandable, but such liability may be regulated by the courts, according to the circumstances. Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply. If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. Art. 2178. The provisions of articles 1172 to 1174 are also applicable to a quasidelict. Notes: Negligence for BoC and QD are defined in the same way as provided by Art 2178.Therefore, if you sue for negligence, you can base the action on quasi-delict, delict, or contract.

CULPA AQUILANA VS. CULPA CONTRACTUAL 1.culpa aquilana- is the wrongful act or omission which of itself is the source of the obligation separate from, and independent of, contract culpa contractual - act or omission considered as an incedent in the performance of an obligation already existing and which constitutes a breach thereof a. where liability arises from culpa aquilana, not a breach of positive obligation, an employer or master may excuse himself under the last paragraph of Article 2180 by proving that he had exercised " all diligence of a good father of a family to prevent damage" b. in culpa aquilana, the plainitff has the burden of proving that the defendant was at fault or negligent. in culpa contractual, it is not necessary for the plaintiff to plead or prove that the violation of the contract was due to fault or negligence. c. culpa aquilana- there is no preseumption that the defendant was at fault or negligent Culpa contractual - the mere proof of the existence of the contract and its breach raises such presumtion that the burden is on the defendant to prove that he was not at fualt or negligent. d. culpa aquilana - primarily governed by Article 2176 Culpa Contractual - governed by 1170 to 1174

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CRIME VS. QUASI- DELICT 1. crime -there is criminal or malicious intent or criminal negligence quasi delict - there is only negligence 2. Crime - there are 2 liabilities: criminal and civil QD - there is only civil liability 3. Crime - affects public interest QD - concerns private interest or concern 4. crime - purpose is punishment or correction QD - indemnification of the offended party 5. Criminal liability cannot be compromised Liability for QD can be compromised as any other civil liability 6. In crime, the guilt of the accused must be proved beyond reasonable doubt, QD - the fault or negligence of the defendant need only be proved by preponderance of evidence 7. Crime - the liability of the person responsible for the author of the negligent act or omission is subsidiary QD - it is direct and primary

Q: BURDEN OF PROOF The Burden of proof is generally on the person claiming damages to establish by satisfactory evidence that the legal cause of his damage or injury was the fault or negligence of the defendant or of one whose acts must respond and the damages suffered by him. REASON FOR BURDEN OF PROOF: As a rule, negligence is not presumed. Mere suspicio, surmise or speculation cannot be the basis of an award for damages. Q: WHO ARE THE PERSONS ENTITLED TO SUE FOR TORT? 1. Particular individual injured 2. Persons upon whom tort is committed 3. persons injured by tort commited upo another 4. Several persons wronged by the same act 5. Persons especially injured by contract violation 6. Persons directly, not collaterally injured

Q: WHAT IS THE DOCTRINE OF NO DUTY TO ACT RULE? GR: It holds that, unless the defendant has assumed a duty and has a legal obligation to act or stands in a special relationship to the P, defendants are not liable in tort for a pure failure to act for the P’s benefit. XPN: page 172 ***Police officer: How would one then define the degree of due diligence one should observe? The law provides a guide in saying that such diligence is that which is required by the nature of the obligation and corresponds with the circumstances of person, time and place (Art. 1173, ibid.). TESTS OF NEGLIGENCE • Did the defendant in doing the alleged negligent act use the reasonable care and caution which an ordinary prudent person would have used in the same situation? • If not, then he is guilty of negligence • Could a prudent man, in the case under consideration, foresee harm as a result of the course pursued? • If so, it as the duty of the actor to take precautions to guard against harm CIRCUMSTANCES TO CONSIDER • Time • Place • Personal circumstances of the Actors Q: ORDINARY DILIGENCE V. EXTRAORDINARY DILIGENCE GOOD FATHER OF A FAMILY (pater familias) • The only standard of conduct used in the Philippines (Art. 1173 NCC) • A reasonable man is deemed to have knowledge of the facts that a man should be expected to know based on ordinary human experience. Corliss v. Manila Railroad – The law presumes or requires a man to possess

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ordinary capacity to avoid harming his neighbors unless a clear and manifest incapacity is shown and the law does not hold him liable for unintentional injury unless, possessing such capacity, he might and ought to have foreseen the danger. Corliss v. Manila Railroad – The law works only within the sphere of the senses. Moral consideration are not normally accorded great weight.The knowledge and experience of the actor is also considered in determining whether he observed due diligence. Q: No Double Recovery Rule Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant. Broader concept of Civil Liability A single act can give rise to two kinds of liability – civil liability for quasi-delict and liability for crime. Under the liability for crime, the defendant has two kinds of liability – criminal liability and civil liability. This is illustrated by the following diagram: Civil liability || Quasi-Delict Crime || Criminal liability Civil liability Problem: X filed a claim for 100K in damages in an action for quasi-delict. The judge awarded 50K. Can X filed a criminal action to recover the remaining 50K? Answer: No, this would violate the principle of res judicata. The victim had the opportunity to present evidence in the criminal case. If he files another case, he will be merely presenting the same evidence. CASES: Jarantilla v. CA Jose Kuan Sing was crossing the street when he was sideswiped by a Volkswagen Beetle driven by Edgar Jarantilla. Sing instituted a criminal action against Jarantilla for serious physical injuries through reckless imprudence. Sing intervened in the prosecution through a private prosecutor and did not reserve his right to institute a separate civil action. Jarantilla was acquitted because of reasonable doubt. Sing subsequently instituted a civil action for damages involving the same subject matter and act complained of as in the criminal case.

The trial court found in favor of Sing and awarded actual and moral damages, attorney’s fees, and costs. The CA affirmed. ISSUE: Whether Sing could have filed the separate civil action despite Jarantilla’s acquittal in the criminal action. HELD: Yes, the civil action was properly filed. The same act or omission (in this case, the negligent sideswiping of private respondent) can create two kinds of liability on the part of the offender: civil liability ex delicto and civil liability ex quasi delicto. Since the same negligence can give rise either to a delict or crime or to a quasi-delict or tort, either of these two types of civil liability may be enforced against the culprit, subject to the caveat under Article 2177 of the Civil Code that the offended party cannot recover damages under both types of liability. The only instance where a civil action cannot be instituted after the dismissal of the criminal case is where such dismissal was accompanied by a statement of the court declaring that the act complained of never happened. Q: Quasi-delict vs. Criminal offense Crimes affect public interest while quasi-delicts are of private concern. RPC punishes or corrects the criminal act while NCC merely repairs the damages incurred through indemnification. Crimes are not as broad as quasi-delicts, because crime are punished only if there is a law clearly covering them. Quasi-delicts include all acts inwhcih any kind of fault or negligence intervenes. FORTUITOUS EVENT - no person shall be responsible for those events which cannot be foreseen, or which through foreseen were inevitable REQUISITES: a. Event must be independent of the human will or at least obligor’s will. b. It must be impossible to foresee the event which constitutes caso fortuito or if it can be foreseen it must be impossible to avoid c. The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner d. The obligor must be free from any participation in the aggravation of the injury resulting to the creditor. • GENERAL RULE: Fortuitous Event is a complete defense and a person is not liable if the cause of the damage is a fortuitous event. • EXCEPTION: It is merely a partial defense and the courts may mitigate the damages if the loss would have resulted in any event [Art. 2215(4) NCC] When expressly specified by law When declared by stipulation When nature of obligation requires the assumption of risk • NOTE: A person may still be liable for a fortuitous event if such person made an ASSUMPTION OF RISK.

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Fortuitous event v. Force Majeure FE: is any event which cannot be foreseen, or which though foreseen is inevitable. It is an event which is either impossible to foresee or impossible to avoid. It is an event independent of the will of the obligor but not of other men. ( Acts of Men) FM: are those events which are totally independent of the will of every human being. ( Acts of God) Q: WHAT IS AN EMERGENCY RULE? Under the “emergency rule,” one who suddenly finds himself in a place of danger and is required to act without time to consider the best means that may be adopted to avoid the impending danger is not guilty of negligence. In this case, any reasonable and ordinary prudent man would have tried to avoid running over the two boys by swerving away. Hence, Koh cannot be deemed negligent. Valenzuela v. CA, 253 SCRA 303 – An individual will nevertheless be subject to liability if the emerge NOTE: Applicable only to situations that are sudden and unexpected such as to deprive actor of all opportunity for deliberation (absence of foreseeability); the action shall still be judged by the standard of the ordinary prudent man Factors to be considered: • Gravity of the Harm to be avoided • Alternative courses of action - If the alternative presented to the actor is too costly, the harm that may result may still be considered unforeseeable to a reasonable man • Social Value and Utility of the Action - The act which subjects an innocent person to an unnecessary risk is a negligent act if the risk outweighs the advantage accruing to the actor and even to the innocent person himself. Person exposed to the risk - A higher degree of diligence is required if the person involved is a child. DOCTRINE OF ASSUMPTION OF RISK – Volenti non fit injuria REQUISITES: a. Intentional exposure to a known danger
 b. One who voluntarily assumed the risk of an injury from a known danger cannot recover in an action for negligence or an injury is incurred
 c. Plaintiff’s acceptance of risk (by law/contract/nature of obligation) has erased defendant’s duty so that his negligence is not a legal wrong d. Applies to all known danger

GR: A plaintiff who voluntarily assumes a risk of harm arising from negligent or reckless conduct of defendant cannot recover for such harm. EXCEPTIONS (plaintiff is free from liability): Emergency is found to exist Life or property of another is in peril when he seeks to rescue his endangered property That which a person assents is not esteemed in law as injury”. One is not legally injured if he has consented to the act complained of or was willing that it should occur. This negates negligence or liability on part of the defendant even if his conduct would have constituted an actionable negligence, and without regard to the fact that plaintiff may have acted in due care. INAPPLICABILITY : If the person created the danger and another person voluntarily assumes the risk but is not injured by it even though he was injured in some other way in attempted to withdraw from the scene after the decree of danger increases, the defense of Assumption of Risk cannot be available. It is not available to employer in cases covered by Workmen’s Compensation Act. Here, the burden of risk of industrial accidents has been transferred by law from employee to employer. Employer is liable for damages or compensation to employee for any injuries from accidents arising out of and in the course of his employment or other illness directly caused by such employment. Q: WHAT IS CONTRIBUTORY NEGLIGENCE? CONTRIBUTORY NEGLIGENCE - the plaintiff was also negligent together with the defendant; to constitute a defense, proximate cause of injury/damage must be the negligence of defendant If negligence of the plaintiff cooperated with the negligence of the defendant in bring the accident causing the injury, negligence of the plaintiff shall be the absolute bar to recovery. If negligence of plaintiff was merely contributory to his injury, the immediate and proximate cause of the accident is still the defendant’s negligence, recoverable damages will only be mitigated. It is the conduct on the part of the injured party, contributing as a legal cause to the harm he suffered, which falls below the standard, which he is required to conform for his own protection. Notes: The defense of contributory negligence does not apply in criminal cases committed through reckless imprudence because one cannot allege the negligence of another to evade the effects of his own negligence.

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(Imputed Contributory Negligence) Negligence is imputed if the actor is different from the person who is being made liable. Since the master may be held for his servant’s wrongful act, the law imputes to the master the act of the servant. This applies in situations where the negligence on the part of the person for whom the plaintiff is responsible, and especially by negligence of an associated in the transaction where he was injured. The defendant will be subject to mitigated liability even if the plaintiff was not himself personally negligent because the negligence of another is imputed to the plaintiff. Q: WHAT IS CONCURRENT NEGLIGENCE? CONCURRENT NEGLIGENCE – if both parties are equally negligent the courts will leave them as they are; there can be no recovery. Q: WHAT IS THE DOCTRINE OF LAST CLEAR CHANCE? Where both parties are negligent in such a way that it would be impossible to determine whose negligence was the proximate cause of the accident, the party who had the last clear chance or opportunity to avoid the accident by use of proper care but failed to do so is considered by law to be solely responsible for the consequences of the accident. EX: If a truck driver saw an incoming car that swerved and entered the truck’s lane to avoid running over a pedestrian, and the truck driver did not move to the side to give way to the incoming car even if he could have done so to avoid the collision, he is solely liable for the incident. Notes: It only applies to vehicular accidents. It assumes negligence on the part of the defendant and contributory negligence on the plaintiff. In cases where the doctrine is applied, it was defendant’s failure to exercise ordinary care, having the last clear chance to avoid loss or injury, which was the proximate cause of the loss or injury. It is sometimes referred to as: Discovered peril Doctrine of supervening negligence Humanitarian doctrine The role of the doctrine in relation to Art 2179 is only to mitigate damages within the context of contributory negligence. It does not apply in relationship between bank and its deposits. In a case of culpa contractual, neither contributory negligence of plaintiff nor his last clear chance would exonerate the defendant from liability. This only serves to reduce the recovery of damages but does not exculpate the defendant from his breach of contract.

It applies in suit between owners and drivers of two colliding vehicles. However, it does not arise where a passenger demands responsibility from carrier to enforce its contractual obligations. ELEMENTS: 1. Plaintiff was in the position of danger. By his own negligence, he is unable to escape from that position by use of ordinary care. 2. Defendant had the last clear chance to avoid the accident through exercise of ordinary care but failed to exercise it. 3. Defendant knew that the plaintiff was in the position of danger, or should have known such. 4. Accident occurred as a proximate result of such failure. WHO MAY INVOKE IT? Only the person injured and not the defendant. This doctrine implies that the person injured had contributory negligence. However, it does not preclude the defendant from proving the other way and that it was the contributory negligence which proximately caused the accident in order to stop the plaintiff from recovering. NOTE: The doctrine is inapplicable to: Joint tortfeasors 
 Defendants concurrently negligent 
 rd As against 3 persons 
 Q: NEGLIGENCE AS THE PROXIMATE CAUSE Negligence as Proximate Cause Proximate Cause – that cause which, in the natural and continuous sequence, unbroken by an efficient supervening cause, produces the injury and without which the injury would not have occurred. Subido v. CA This case involves an accident between a truck [or bus] belonging to Laguna Tayabas Bus Company (LTB) and driven by Mudales and a truck owned by Sabido and driven by Lagunda. The two vehicles were going in opposite directions when they met at a curve in the road. Custodio, a passenger of LTB was hanging [sabit] on the left side of the

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vehicle. He died after being sideswiped by Sabido’s truck. The CFI held the vehicle owners and the drivers solidarily liable. LTB and its driver were liable for violating the contract of carriage; Sabido and his driver were liable for quasi-delict. ISSUE: Whether Sabido and his driver were guilty of negligence; whether they should be held solidarily liable with LTB.

1.



Defendant’s conduct is the cause in fact of the injury if the damage would not have resulted had the defendant not been negligent. Notes on But-For Test: 1. 2.

HELD: They are both guilty of contributory negligence. Though LTB and its driver were guilty of negligence for allowing Custodio to hang from the left side of the bus, Sabido and his driver were guilty of contributory negligence because the truck was running at a considerable speed, despite the fact that it was negotiating a sharp curve, and, instead of being close to its right side of the road, said truck was driven on its middle portion and so near the passenger bus coming from the opposite direction as to sideswipe a passenger riding on its running board. Though the negligence of LTB and its driver are independent from the negligence of Sabido and his driver, both acts of negligence are the proximate cause of the death of Custodio. In fact, the negligence of the first two would not have produced this result without the negligence of Sabido and his driver. What is more, Sabido’s driver’s negligence was the last, in point of time, for Custodio was on the running board of the carrier's bus sometime before petitioners' truck came from the opposite direction, so that, in this sense, Sabido’s truck had the last clear chance. Even though LTB’s liability arises from breach of contract and Sabido’s arises from quasi-delict, they are solidarily liable because the rule is that where both negligent acts, in combination, are the direct and proximate cause of a single injury to a third person and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage might have resulted from the acts of the other tort-feasor. Tests of Proximate cause

But for test - defendant's conduct is the cause of the injury which would not have been sustained if the defendant had not been negligent.

3.

4.

Negligence does not need to be the sole cause. The actor is liable as long as it is the proximate concurring cause. The injured party must establish that the defendant’s culpable conduct was the cause of injury. a. EX: If X fails to keep a life vest in the ship and Y could have been saved if there was a life vest, X shall be liable for Y’s drowning. However, if Y could have drowned even if there was a life vest, X shall not be liable. There is a degree of artificial abstraction (state of preoccupation). a. EX: If X and speeding and hits Y, X can argue that he would have hit Y even if he has not been speeding. His negligence will not be a But-For Cause if the outcome would have been the same. It is possible to have more than 1 But-For cause for an injury.

2. cause-in-fact test - a cause in fact relation must exist between defendants conduct and plaintiff's injury before liability may arise.

 



Determine if defendant’s negligence was the cause-in-fact of the damage to the plaintiff. If it is not, inquiry stops. POLICY TEST: If defendant’s negligence was indeed the cause-in fact, the inquiry shifts to the question of limit of liability of the defendant. The law may limit the liability of the defendant to certain consequences of his action. Negligent act or omission is a cause in fact of the damage if it is a necessary element of a sufficient set. This is effective in solving problems regarding concurrent causes.

3. substantial factor test - if the actors conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred, does not prevent him from being liable Notes on Substantial Factor Test:

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1.

2. 3.

If the actor’s conduct is the substantial factor in bringing the injury, the fact that the actor did not foresee or could not have foreseen the injurious act does not prevent him from being liable. a. The conduct should have set the cause of the injury. This cause must continue until the moment of damage or the final active injurious force which preceded the actual damage. If the injury would not have happened had the defendant not been negligence, his conduct shall be considered the substantial factor. This is used to supplement the But-For Test if redundant multiple causes would prevent liability. a. EX: X starts a fire on the left side of Y’s house. Z starts a fire on the right side. Both fires destroyed Y’s house. i. Neither of these is the a But-For Cause because in the absence of either fire, Y’s house could still have burned. Because both causes are redundant, and neither is a But-For, this may result to potential preclusion of liability against either defendant if you use the But-For Test. ii. To avoid this, Substantial Factor gives liability to the defendant that materially contributed to the injury.

4. Foreseability test - if the defendant could not reasonably foresee any injury as a result of his act, or if his act is reasonable in the light of what he could anticipate, there is no negligence and no liability. It cannot be considered as a sufficient intervening cause because there is an opportunity to guard against it.

sense, foreseeable, foresee ability appears to be an implicit element of this test of proximate cause. 6. Direct consequence test - the defendant is liable for all the damage that flows as the ordinary and natural or direct consequence of his conduct to be determined from the circumstances of the case rather than upon whether he might or must have reasonably expected the resulting inury. Q: DOCTRINE OF RES IPSA LOQUITOR It literally means “the thing speaks for itself”. 1.

2.

3.

4. Notes: 1.

2.

3.

A tortfeasor is liable for consequences of negligence, mistake or lack of skill of a physician or surgeon whose treatment aggravated the original injury. This is considered as a normal and foreseeable risk. The original tortfeasor is not liable if the injured party fails to exercise reasonable care in securing the services of a competent surgeon or physician. This can be considered an efficient intervening cause. If the intervening cause is a recurrent feature of the environment, it is not an efficient intervening cause because it is foreseeable.

5. Natural and probable consequence test - it must appear that the injury was not only the natural but also the probable consequence of the conduct as distinguished from consequences that are merely possible. since shat is probable is, in a real

Where a thing is shown to be under the management of the defendant or his servants, and the accident is such as is in the ordinary course of events does not happen if those who have the management had used proper care, it affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from want of care. The fact of occurrence of an injury, taken with surrounding circumstances may allow presumption of negligence to be inferred, or may make out an injured party’s prima facie case, and present a question of fact for the defendant to meet with an explanation. It is a rebuttable presumption that defendant was negligence which arises upon proof that the instrumentality causing injury was the defendant’s exclusive control, and that the accident was one which ordinarily does not happen in the absence of negligence. This doctrine is not meant to dispense the requirement of proof. It only determines and regulates what shall be prima facie evidence, and helps the plaintiff in proving the breach of duty.

Notes on Res IpsaLoquitor: 1.

2. 3.

The thing which caused the injury, without fault of the injured, is under the exclusive control of the defendant and the injury is such that it would not have occurred if he, having control, used proper care. It is applied in conjunction with Doctrine of Common Knowledge. Conditions usually stated for application of the doctrine: a. Accident must be of such kind which ordinarily does not happen in the absence of someone’s negligence. b. It must be caused by an agency or instrumentality within the exclusive control of the defendant.

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c.

4.

It must not be due to any voluntary action or contribution on the part of the plaintiff. In medical negligence, the doctrine allows mere existence of an injury to justify the presumption of negligence on the part of the person who controls the instrument, provided the requisites concur.

REQUISITES: 1. The accident is of a kind or character which ordinarily does not occur in the absence of someone’s negligence. 2. It is caused by an instrumentality or an agency within the exclusive management or control of the defendant/s 3. The possibility of contributing conduct which would make it the P responsible is eliminated. INAPPLICABILITY: 1. If there is direct proof of absence of presence of negligence. When an unexplained accident may be attributable to several causes, for some of which defendant could not be held responsible. Proscription of action upon quasi-delict Article 1146. The following actions must be instituted within four years: (1) Upon an injury to the rights of the plaintiff; (2) Upon a quasi-delict; However, when the action arises from or out of any act, activity, or conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest, detention and/or trial of the plaintiff, the same must be brought within one (1) year. (As amended by PD No. 1755, Dec. 24, 1980.)

Article 2185, NCC - Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. 
NOTE: Proof of traffic violation is required. A causal connection must exist between the injury received and the violation of the traffic regulation. It must be proven that the violation of the traffic regulation was the proximate or legal cause of the injury or that it substantially contributed thereto. Negligence, consisting in whole or in part, of violation of law, like any other negligence, is without legal consequence unless it is a contributing cause of the injury (Tison v. Pomasin, G.R. No. 173180, August 24, 2011). 
 Article 2188, NCC - There is prima facie presumption of negligence on the part of the defendant if the death or injury results from his possession of dangerous weapons or substances, such as firearms and poison, except when possession or use thereof is indispensable in his occupation or business. 
NOTE: Proof of possession of dangerous weapons or 
substances is required. 
 Article 1756, NCC - In case of death or injuries of 
passengers, common carriers are presumed to have been at fault or acted negligently, unless they prove 
 that they observed extraordinary diligence prescribed in Articles 1733 and 1755 of the NCC.

PRESUMPTION OF NEGLIGENCE (2000, 2009 BAR) 5. Captain of the ship doctrine - A surgeon is likened to a captain of the ship, such A person is generally presumed to have taken ordinary care of his concerns (Rules

that it is his duty to control everything going on in the operating room. The surgeon

of Court, Rule 131, Sec. 3). There are however exceptions when negligence is

in charge of an operation is liable for the negligence of his assistants during the

presumed:

time when those assistants are under the surgeon’s control

Article 2184, NCC - It is disputably presumed that a driver was negligent, if he

(Cantre v. Go, G.R. No. 160889, April 27, 2007).

had been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months. 


NOTE: The negligence of the employee gives rise to the presumption of negligence on the part of the employer. This is the presumed negligence in the selection and

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supervision of the employee (Poblete v. Fabros, G.R. No. L- 29803, September 14,

Private Nuisance - one which violates only private rights and produces

1979).

damage to but one or a few persons, and cannot be said to be public 


PRESUMPTION OF NEGLIGENCE (2000, 2009 BAR)

NUISANCE Any act, omission, establishment, business, condition of property, or anything else which condition of property, or anything else which: d. Hinders or impairs the user of property; 
 e. Annoys or offends the senses; 
 f. Shocks, defies or disregards decency or morality; 
 g. Injuries or endangers the health or safety of other; or 
 h. Obstructs or interferes with the free passage of any 
public highway or street, or any body of water. 


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

The test is whether rights of property, of health, of comfort are so injuriously affected by the noise that the sufferer is subjected to a loss which goes beyond the reasonable limit imposed by him by the condition of living (Velasco v. MERALCO,

prevent them from playing therefrom is liable to a child of tender years who is injured thereby, even if the child is a trespasser (Hidalgo v. Balandan, G.R. No. L3422, June 13, 1952).

G.R. No. L-18390, August 6, 1971). Two fields of liability

Nuisance distinguished from trespass.

Public Nuisance - the doing of or the failure to do something that

There is a distinction between the two, although many things are called nuisances

injuriously affects safety, health, or morals of the public, or works some

which are mere trespasses.

substantial annoyance, inconvenience, or injury to the public 


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(1) A nuisance consists of a use of one’s own property in such a manner as to cause

cumstances in connection with an act or omission which is not of itself wrongful.

injury to the property or other right or interest of another (Norcross v. Thomas, 51 Me. 503, 81 Am. Dec. 588.), and generally results from the commission of an act

(3) Where the damage is the necessary consequence of what the defendant is

beyond the limits of the property affected, while a trespass is a direct infringement

doing, or is incident to the business itself or the manner in which it is conducted

of another’s right of property. (Herring v. Wilton, 100 Va 171, 55 SE 546; see 26 RCL

(whether there is proper care or not), the law of negligence has no application, and

928.)

the law of nuisance applies. (58 Am. Jur. 2d 557.)

Thus, where there is no actual physical invasion of the plaintiff’s property, the

Nuisance per se and nuisance per accidens de ned.

cause of action is for nuisance rather than trespass. And an encroachment upon the space about an- other’s land but not upon the land itself is a nuisance and not a trespass. (Conestee Mills v. Greenville, 158 SE 113, 75 ALR 519; Rafka v. Bozio, 218 P 753, 191 Cal. 746.) (2) In trespass, the injury is direct and immediate; in nui- sance, it is consequential. (86 C.J. 651.)

Based on their nature, nuisance is either per se (or in law) or nuisance per accidens (or in fact). (1) Nuisance per se is an act, occupation, or structure which is unquestionably a nuisance at all times and under any circum- stances, regardless of location or surroundings. It is anything which of itself is a nuisance because of its inherent qualities, productive of injury or dangerous to life or property without regard to

Nuisance distinguished from negligence.

circumstance. (see 58 Am. Jur. 2d 568-569.)

The two are not synonymous terms. They are different in their nature and

Thus:

consequences. (1) To render a person liable on the theory of either nuisance or negligence, there must be some breach of duty on his part, but liability for negligence is based on a want of care, while ordinarily, a person who creates or maintains a nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised to avoid the injury. (2) The creation or maintenance of a nuisance is a violation of an absolute duty, the doing of an act which is wrongful in itself, whereas negligence is a violation of a relative duty, the failure to use the degree of care required under particular cir-

(a) A house of prostitution is a nuisance per se aside from being a public nuisance. The same is true of gambling houses. (b) The same is also true of houses constructed without governmental authority on public streets and river beds for they obstruct at all times the free use by the public of said places. As such, they may be summarily removed without judicial proceedings. (Sitchon vs. Aquino, 98 Phil. 458 [1955].) (c) Any and all squatters on government resettlement projects are likewise nuisances per se and public nuisances and they can be abated or ejected without judicial proceed- ings. (Mendoza vs. National Housing Authority, 111 SCRA 637

19

[1982]; see Arts. 699[3], 705[2].)

Art. 699. The remedies against a public nuisance are:

(2) Nuisance per accidens is an act, occupation, or structure, not a nuisance per se,

(1) A prosecution under the Penal Code or any local ordinance; or

but which may become a nuisance by reason of circumstances, location, or surroundings. Thus, raising and breeding pigs in a house within city limits is a

(2) A civil action; or

nuisance per accidens. (3) Abatement, without judicial proceedings. Remedies against a public nuisance. Nuisance per se and nuisance per accidens distinguished. The above remedies are not exclusive but cumulative. All of them may be availed of The difference between nuisance per se and nuisance per accidens lies in the proof,

by public of cers, and the last two, by private persons, if the nuisance is especially

not in the remedy. The responsibility for a nuisance for either sort is the same.

injurious to the latter. (Art. 703.)

(1) Existence. — In the case of a nuisance per se, the thing becomes a nuisance as a matter of law. Its existence need only be proved in any locality, without a showing of speci c dam- ages, and the right to relief is established by averment and proof of the mere act. But whether a thing not a nuisance per se is a nuisance per accidens

STANDARD OF CONDUCT or DEGREE OF CARE REQUIRED

or in fact, depends upon its location and surroundings, the manner of its conduct or other circumstances, and in such cases, proof of the act and its consequences is necessary. The act or thing complained of must be shown by evidence to be a nuisance under the law, and whether it is a nuisance or not is generally a question of fact. (see 58 Am. Jur. 2d 569.)

IN GENERAL: If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required [Article 1173(2)]. NOTE: Diligence of a good father of a family - bonus pater familias - A reasonable man is deemed to have knowledge of the facts that a man should be expected to

(2) Abatement. — As nuisance per se affects the immediate safety of persons and

know based on ordinary human experience (PNR v. IAC, G.R. No. 7054, January 22,

property, they may be summarily abated under the unde ned law of necessity. But

1993).

if the nuisance be per accidens, even the municipal authorities, under their power to declare and abate nuisances, would not have the right to compel the abatement

Persons who have Physical Disability

of a particular thing or act as a nuisance without reasonable notice to the person

GR: A weak or accident prone person must come up to the standard of a

alleged to be maintain- ing or doing the same at the time and place of hearing

reasonable man, otherwise, he will be considered as negligent.

before a tribunal authorized to decide whether such a thing or act does in law constitute a nuisance. (Monteverde vs. Generoso, 52 Phil. 23 [1928].

XPN: If the defect amounts to a real disability, the standard of conduct is that of a

20

reasonable person under like disability.

by express provision of law, there may be civil liability even when the actor is exempt from criminal liability. An insane person is still liable with his property for

Experts and Professionals

the consequences of his acts, though they performed unwittingly (US v. Baggay, Jr. G.R. No. 6659, September 1, 1911).

GR: They should exhibit the case and skill of one who is ordinarily skilled in the particular field that he is in.

Employers

NOTE: This rule does not apply solely or exclusively to professionals who have

That degree of care as mandated by the Labor Code or other mandatory provisions

undergone formal education.

for proper maintenance of the work place or adequate facilities to ensure the safety of the employees.

XPN: When the activity, by its very nature, requires the exercise of a higher degree of diligence

NOTE: Failure of the employer to comply with mandatory provisions may be considered negligence per se.

e.g. Banks; Common carriers Employees Insane Persons Employees are bound to exercise due care in the performance of their functions for The insanity of a person does not excuse him or his guardian from liability based on

the employers. Liability may be based on negligence committed while in the

quasi-delict (NCC, Arts. 2180 & 2182). This means that the act or omission of the

performance of the duties of the employee (Araneta v. De Joya, G.R. No. L-25172,

person suffering from mental defect will be judged using the standard test of a

May 24, 1974).

reasonable man. NOTE: The existence of the contract constitutes no bar to the commission of torts The bases for holding a permanently insane person liable for his torts are as

by one against the other and the consequent recovery of damages.

follows: Owners, Proprietors and Possessors of Property Where one of two innocent person must suffer a loss it should be borne by the one who occasioned it;

GR: The owner has no duty to take reasonable care towards a trespasser for his protection or even to protect him from concealed danger.

To induce those interested in the estate of the insane person (if he has one) to restrain and control him; and

XPNs:

The fear that an insanity defense would lead to false claims of insanity to avoid

Visitors – Owners of buildings or premises owe a duty of care to visitors.

liability (Bruenig v. American Family Insurance Co., 173 N.W. 2d 619, (1970)). Tolerated Possession - Owner is still liable if the plaintiff is inside his property by NOTE: Under the RPC, an insane person is exempt from criminal liability. However,

tolerance or by implied permission. However, common carriers may be held liable

21

for negligence to persons who stay in their premises even if they are not

and Article 2180 in relation to Article 2176, NCC on vicarious liability

passengers. Elements of medical negligence State of Necessity – A situation of present danger Duty – Duty refers to the standard of behavior which imposes restrictions on one's Doctrine of Attractive Nuisance

conduct. The standard in turn refers to the amount of competence associated with the proper discharge of the profession; 
NOTE: A physician-patient relationship

to legally protected interests, in which there is no other remedy than the injuring of

must first be established. 


another’s also legally protected interest. Breach of duty - occurs when the physician fails to comply with these professional Doctors

standards; 


If a General Practitioner – Ordinary care and diligence in the application of his

NOTE: Expert testimony is essential since the factual issue of whether a physician

knowledge and skill in the practice of his profession.

or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is generally a matter of expert opinion.

If a Specialist – The legal duty to the patient is generally considered to be that of an average physician.

i. Injury – sustained as a result of the breach of duty; and 


Lawyers

j. Proximate Causation - the plaintiff must plead and prove not only that he had been injured and defendant has been at fault, but also that the

An attorney is bound to exercise only a reasonable degree of care and skill, having

defendant's fault caused the injury (Flores v. Pineda, G.R. No. 158996,

reference to the business he undertakes to do (Adarne v. Aldaba, A.M. No. 801,

November 14, 2008). 
NOTE: The critical and clinching factor in a medical

June 27, 1978).

negligence case is proof of the causal connection between the negligence

Medical negligence is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and

which the evidence established and the plaintiff's injuries (Ibid.). 
 Proof of negligence

skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances (Reyes v. Sisters of Mercy

In order to successfully pursue such a claim, a patient must prove:

Hospital, G.R. No. 130547, October 3, 2000). c. that the physician or surgeon either failed to do something which a reasonably NOTE: Medical negligence is also known as medical malpractice. Basis of liability

prudent physician or surgeon would have done, or 
 d. that he or she did something that a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the

Article 2176, NCC on quasi-delicts; Article 2179, NCC on contributory negligence;

22

patient (Reyes v. Sisters of Mercy Hospital, G.R. No. 130547. October 3,

consented to treatment he otherwise would not have consented to; and

2000). 





Doctrine of Captain of the Ship

m. plaintiff was injured by the proposed treatment 
(Ibid.). 


The surgeon is likened to a ship captain who must not only be responsible for the

NOTE: The gravamen in an informed consent case requires the plaintiff to point to

safety of the crew but also of the passengers of the vessel. The head surgeon is

significant undisclosed information relating to the treatment which would have

made responsible for everything that goes wrong within the four corners of the

altered her decision to undergo it.

operating room. It enunciates the liability of the surgeon not only for the wrongful acts of those who are under his physical control but also those wherein he has

Expert Witnesses

extension of control (Ramos v. CA, G.R. No. 124354, December 29, 1999). GR: Expert medical testimony is relied upon in malpractice suits to prove that a Doctrine of Informed Consent

physician has done a negligent act or that he has deviated from the standard medical procedure.

A physician has a duty to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to his patient

XPN: When the doctrine of res ipsa loquitur is availed by the plaintiff, the need for

as to whatever grave risks of injury might be incurred from a proposed course of

expert medical testimony is dispensed with because the injury itself provides the

treatment, so that a patient, exercising ordinary care for his own welfare, and faced

proof of negligence.

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

(Ramos v. CA, G.R. No. 124354, December 29, 1999) NOTE: Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury

Elements of an action based on the doctrine of informed consent

suffered by him (Ibid.).

The plaintiff must prove:

Instances where negligence is not automatic

1. the existence of a physician-patient relationship; 


e. Wrong diagnosis - not by itself medical malpractice. Physicians are generally not liable for damages resulting from a bona fide error of judgment

2. the duty of the physician to disclose material risks; 


(Casumpang v. Cortejo, G.R. No. 171127 March 11, 2015). 


k. failure to disclose or inadequately disclose those risks; 


f. Failure to undertake the correct management of a patient 


l. that as a direct and proximate result of the failure to disclose, the patient

Liability of hospitals

23

The hospital is liable in the following capacities:

p. The third party induces one party to breach his obligation under the contract; 


3. Employer – vicarious liability for the negligent acts of its physicians pursuant to

4. Damage.

Article 2180 in relation 
to Article 2176 of the NCC. 
 Is malice an element of interference in contractual relation? 4. Principal A: There are variances in opinion. Some cases say that it is not, while other cases a) Doctrine of Corporate Responsibility – The hospital has the duty to exercise reasonable care to protect from harm all patients admitted into its facility for medical treatment hence it is liable for the negligent acts of its health professionals (PSI v. Agana, G.R. No. 126297, January 31, 2007). 
 b) Doctrine of Apparent Authority - Where it can be shown that a

say that it is (So Ping Bun v. CA). So if you’re the lawyer for the plaintiff, you should try to prove it anyway just to be sure. What are the defenses available to the defendant? g. (1) business competition & the purpose is (i) furtherance of the business; & (ii)

hospital, by its actions, has held out a particular physician as its

lawful means are used. Note that there is no intent to cause damage. (So

agent and/or employee and that a patient has accepted

Ping Bun v. CA) 


treatment from that physician in the reasonable belief that it is being rendered in behalf of the hospital, then the hospital will

h. (2) honest advice made (i) in good faith and (ii) in performance of his duty as

be liable for the physician’s negligence (Ibid.). 
 c) Unlawful Restraint of a patient - If the patient is prevented from leaving the hospital for his 


adviser 
 i. (3) innocence of breaching party (Sir doesn’t agree); element of inducement lacking – Cite Daywalt – that the third party cannot be more liable than

5.

inability to pay the bill, any person who can act on his behalf can apply in

the party on whose behalf he 
intermeddles. 


court for the issuance of the writ of habeas corpus (MDH v. Chua, G.R. No. 15035, July 31, 2006).

j.

Article 1314. Any third person who induces an- other to violate his contract shall be liable for dam- ages to the other contracting party.

Interference in Contractual Relation Elements of Interference in Contractual Relation:

k.

Liability of third person responsible for breach of contract.

l.

The rule in Article 1314 is a rule of American law. It is also proper under the general principles of the Philippine law, because a contractual right is

n. Valid contract; 


property. (Report of the Code Commission, p. 135.) m. (1) Real parties in interest in a contract. — The general rule is that

o. Outsider knows of the existence of the contract; 


24

contract take effect only between the parties, their assigns and heirs. 1 (Art. 1311, par. 1.) This means that only the parties, their assigns and

(b) If the means of competition are fair, advantage should remain where success

heirs can have rights and obligations under a contract. Since a contract

there is sharp dealing or over-reaching or other conduct below the behavior of fair

may be violated only by the parties thereto as against each other, in an

men similarly situated, the ensuing loss should be redressed. (96 Am. Jur. 2d 281.)

has put it; but if acts complained of do not rest on some legitimate interest or if

action upon the contract, the real parties in interest, either as plaintiff or as defendant, must be parties to said contract. n.

Tort of interference distinguished from deceit.

Therefore, a party who has not taken part in it cannot sue or be sued for performance or for cancellation thereof, unless he shows that he has a real interest affected thereby.

(2) Unwarranted interference by a stranger. — Article 1314 rec- ognizes an instance when a stranger to a contract can be sued for damages for his unwarranted interference with the contract. It presupposes that the contract interfered with is valid and the third person has knowledge of the existence of the contract. (Comments and Cases on Obligations and Contracts, De Leon and De Leon, Jr., 2003 Ed., pp. 496, 514.) (3) Nature of liability. — The tort of interference with contracts may be considered a quasi-delict under Article 2176 (Chap. 6.) which may make the inducer liable to the other party for dam- ages. It is likewise actionable under Articles 20 and 21.

This tort which has come to be known as “inducing breach of contract’’ differs from deceit as follows: (1) The loss in deceit results immediately from conduct of the plaintiff himself, induced to take injurious action by reliance upon the defendant’s fraudulent misrepresentations. (2) Usually, although not invariably, the business relations out of which the damage arises in a deceit case are between the plaintiff and the defendant whereas, in the case of inducement to breach of contract, the contract involved is between the plaintiff and a third person. The loss results from the action taken by the third person, as a result of the defendant’s conduct. Rationale for the rule.

(Chap. 4.) (1) Protection of the constitutional right to contract. — The right to enter into (4) Interference with another’s business. — Not all interference, however, is actionable. The fact that defendant’s activity has injured plaintiff’s business does not mean that plaintiff neces- sarily is entitled to a remedy. (a) If the disturbance “falls within the area of socially acceptable conduct which the law regards as privileged,’’ it is damnum absque injuria. An injury may be of a kind which in a relatively free economy, a citizen is obliged to suffer, such as an injury

contract is one of the liberties guaranteed by the Constitution, and the right derived from a contract is property that entitles each party thereto to protection and to relief for the harm caused in case of violation or interference. Unlawful interference with the freedom of contract is action- able. It may consist in inducing a party to break an existing contract, or not to enter into a contract, or in preventing him from making a contract when this is done not in the legitimate

resulting from lawful competition of which he cannot complain. (infra.)

25

exercise of the defendant’s own rights but with the intent to injure the plaintiff or

inducement of a breach of contract by a client with an attorney is not maintainable

to gain some advantage or bene t at the latter’s expense.

where the contract prohibits the client from settling or compromising the claim. And no relief will be granted if the contract is invalid as a result of its being a means

(2) Violation of rights of parties to ful ll a contract and have it ful lled. — Although

by which an unlawful combina- tion in restraint of trade is effected. One may, by

the theory of interference generally depends on the rule that there is a limit to

proper means, induce non-performance of a contract whose purpose or effect is to

intentional intermeddling in the business affairs of another, a more limited theory

restrict his business opportunities in violation of public policy.

supports the tort of interference with an existing contract. Interference with a contract is tortious because it violates the rights of the contracting parties to ful ll

(2) Knowledge of existence of contract. — Knowledge of the existence of a contract

the contract and to have it ful lled, to reap the pro ts resulting therefrom, and to

or business relationship is a condition of liability for interference with it. There is no

compel perfor- mance by the other party.

liability where the party charged with procuring a breach of contract has acted bona de and for his own legitimate interest, in ignorance of the existence of any

In other words, a contract confers certain rights on the person with whom it is

contract. But it is not necessary to prove actual knowledge. It is enough to show

made, and not only binds the parties to it by the obligation entered into, but also

that defendant had knowledge of facts which, if followed by reasonable inquiry,

imposes on all the world the duty of respecting that contractual obligation. (46 Am.

would have led to complete disclosure of the contractual relations and rights of the

Jur. 2d 280-281.)

parties. If a party knows the facts which give rise to the plaintiff’s contractual right

Elements of the tort. In order to maintain an act against a third person for tort of interference with a contractual relation, the following elements must be shown to be present: (1) Existence of a valid contract. — To induce one to breach his contract presupposes the existence of a contract. The breach must occur because of the alleged act of interference. No tort is committed where at the time of interference

against another, he is subject to li- ability even though he is mistaken as to the legal signi cance of the facts and believes that there is no contract or that the contract means something other than what it is judicially held to mean. (Ibid. 85-289.) The law does not require that the responsible person shall have known the identity of the injured person. (Gilchrist vs. Cuddy, 29 Phil. 542 [1915].) (3) Existence of malice. — Malice in some form is generally supposed to be an essential ingredient in cases of interference with contract relations.

of, for example, a contract of sale, the purchaser has already violated the terms thereof, and the seller has declared its rescission or cancellation, or the contract

Upon the authorities, it is enough if the wrongdoer, having knowledge of the

has expired, or the injured party has given a complete release to the other.

existence of the contract relation, in bad faith sets about to break it up. Whether

Procuring the breach of a contract is not wrongful if the contract is illegal, or contrary to public policy. For example, an action based upon the malicious

his motive is to bene t himself or gratify his spite by working mischief to a contracting party is immaterial. Malice in the sense of ill-will or spite is not essential. (Daywalt vs. Corporacion de UP Agustinos Recoletos, 39 Phil. 587 [1919];

26

see Jardine Davies, Inc. vs. Court of Appeals, 128 SCAD 20, 333 SCRA 684 [2000].)

performance of an existing contract or for procuring its breach, it must appear that

Hence, it is not necessary to allege and prove actual malice.

the acts of the defendant were to the plaintiff’s damage. Where there is no existing contract, as in the tort of interference with business relations, the plaintiff must

As long as the interference is intentional, it is malicious in law. There is no liability

show either that prospec- tive economic advantage would have been achieved had

for interference unless the act in question was done with the intent to interfere

it not been for such interference or that there was, in view of all the circumstances,

with a contract. One whose actions were not intended to induce the breach of a

a reasonable assurance thereof. (45 Am. Jur. 2d 281-282.)

contract cannot be held liable even if a breach thereof occurs. The knowledge, however, on the part of the defendant of the existence of a contract creates the

(6) Absence of legal justi cation or excuse. — The malice that forms an element in

presumption that he intended the consequences of his conduct, thus supplying the

an action for interference is legal malice, that is, the intentional doing of a harmful

element of malice or motive necessary to make the interference with the contract

act without legal or social justi cation or excuse, or, in other words, the willful

a tort.

violation of a known right. (Ibid. 281.)

(4) Causal relation. — Unless the act complained of was the proximate cause of the

If the persuasion be used for the indirect purpose of injuring the plaintiff or bene

injury complained of, there is no liability for interference. In order to constitute

ting the defendant at the expense of the plaintiff, it is a malicious act which is in

actionable interference with a contract, it must be shown that by reason of

law and fact a wrong act, and, therefore, a wrongful act, and, therefore, an

defendant’s act, a contract which otherwise would have been performed was

actionable act if injury ensues from it. It thus appears that “malice’’ is employed in

abandoned; that is, that there was a breach and that the defendant was a moving

this class of cases, as in many others, in a some- what ctitious sense and means

cause thereof.

little more than the intentional invasion of the plaintiff’s interests without a privilege to do so.

Representations, however fraudulent and malicious, cannot give rise to a cause of action for maliciously causing the ter- mination of a contract where the contracting

The somewhat question-begging formula often used is the “intentional doing of a

party, in acting to terminate the contract, did not rely on the representation. Nor is

wrongful act, without legal justi cation or excuse.’’ (Harper & James, op. cit., p.

protection afforded where the interference with an existing contract is indirect and

429.)

remote from the damage. Thus, in an action for procuring the breach of a contract, the defendant may not be held liable where it is found that the breach by the party

(7) Sufficient justification for interference. — A third person is not liable where suf

to the contract rather than the persuasion by the defendant was the proximate

cient justi cation for interference can be

cause of the plaintiff’s damage. (5) Damage or injury. — Damage is an essential element of the tort of interference. Before recovery can be had for alleged actionable interference with the

shown. (a)

Thus, it was said that if a party enters into a contract to go with another

27

upon a journey to a remote and unhealth- ful climate, and a third person with a bona de purpose of bene ting the one who is under contract to go, dissuades him from the step, no action will lie. But if the advice is not disinterested and the persuasion is used for the indirect purpose of bene ting himself at the expense of the other contracting party, the intermeddler is liable if his advice is taken and the contract broken. (Daywalt vs. Corpo-racion de PP Agustinos Recoletos, 39 Phil. 587 [1919].) (b)

(b) Similarly, an unpaid seller commits no act of unlaw- ful interference in giving notice to a prospective buyer of property that the unpaid seller has not yet been paid by the vendor who brought the real property from him and that he still have the option to rescind the sale of the property to the vendor. (Rubio vs. Court of Appeals, 141 SCRA 488 [1986].)

(c)

(8) Actual inducement not always necessary. — The term “induc- ing breach of contract’’ is somewhat misleading as a description of the tort in question. Actually, it is not always necessary that the defendant has “induced’’ or persuaded another to repudi- ate his contract with the plaintiff. It is necessary, however, that the defendant by his voluntary conduct has been the cause of the breach. No complications arise here from the principle of “proximate causation’’ since the defendant either acts for the purpose of preventing performance by the third person (which would amount to “inducement’’) or with knowledge that his conduct will probably produce such a breach.

(d)

There may be a problem, however, of actual cause or cause in fact. It is sometimes held that the mere entering into a contract with knowledge that there is an outstanding inconsistent contract is not itself a “cause’’ of the other’s breach of the prior contract. Some recent authority, 2 however, indicates that this may be suf- cient to incur liability. (Harper & James, op. cit., pp. 498-499.)

28