Torts and Damages

I . Concept/ Definition The term Tort is of Anglo-American law-common law which is broader in scope than the Spanish-Phil concept which is limited to negligence while the former includes international or criminal acts. Torts in Philippine law is the blending of common-law and civil law system. Quasi Delict refers to acts or omissions which cause damage to another, there being fault or negligence on the part of the defendant, who is obliged by law to pay for the damages done. Elements of Quasi Delict !. "amages suffered by the plaintiff #. $ault or negligence of the defendant %. &asual connection between the fault or negligence of the defendant's act and the damages incurred by the plaintiff (Andamo vs IAC, 191 SCRA 426, 96) Article #!() of the &ivil &ode applies when there's no pre-e*isting contractual relation between the parties. +owever, the supreme court held that even if there is contractual relation, there will still be ,uasi-delict since the act that brea- the contract may be also be tort, in cases of Air France vs Carrascaso, 18 SCRA 155; Singson vs !I, 2" SCRA 111#, 6"; and Fa$re %r vs CA, 259 SCRA 426 II. Distinctions !. a. $ault signifies voluntary act or omission causing damages to the right of another giving rise to an obligation of the actor to repair such damage. $ault is of two .#/ -inds i. Substantive and independent fault in that there is no pre-e*isting relation. This is the one referred to Art. #!() 0&& and source of an obligation. 1t is also -nown as culpa e*tra contractual or culpa a,uiliana covered by Art. #!() 0&&. ii. $ault as an incident in the performance of an obligation e*isting 2 is -nown as contractual fault or culpa contractual governed by Art. !!(3-(% of 0&&. b. 0egligence consists in the omission to do certain acts which result to the damage to another. #. As to 1ntent to cause damage to another thru an act or omission a. 1t is culpa absence such intent, the actor's liability is civil governed by the &ivil &ode.

b. 1t 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 4evised Penal &ode. "istinctions 2 1mportance of -nowing 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 4evised Penal &ode or create an action for ,uasi delict or culpa contractual under the &ivil &ode. 1llustrative &ase GSIS vs CA, 3 ! SC"A ##$, %$$ $acts 0$A 0ational $ood Authority 2 owner of &hevrolet truc- insured by 5S1S- &6781. 7ictor 9y 2 owner of Toyota Tamaraw used as P9 insured by 6abuhay 1ns and 5uarrantee 2 &6781. :n 6ay ;, !;(; at Tabon-Tabon, <utuan &ity, the two vehicles collided resulting to death and in=uries to passengers of the Tamaraw and total wrec- of the Tamaraw. % cases were filed.

.!/ &ivil &ase 0o. #!;) for ,uasi-delict filed by 9> vs 0$A ? 5S1S 2 recover damage to property. @on .#/ &ivil &ase 0o. ###A for culpa contractual filed by in=ured passenger Taer vs 7ictor 9y and 6abuhay. @on. .%/ &ivil &ase 0o. ##A) for ,uasi-delict 0$A and driver &orbeta, 5S1S vs 7ictor 9y for culpa contractual and 6abuhay.

.0ote no criminal action was filed although it may be done had any of the in=ured parties minded to. The action against the 1nsurers 5S1S and 6abuhay are based on the insurance contract of &6781 whereby passengers in=ured have the right to sue directly the insurers/ 3. Distinctions &et'een Crimes and Culpa A(uiliana) &rimes !. &rimes affected the public interest. #. Penal law punishesB corrects the criminal act. %. :nly acts covered by Penal 8aw are punished .<arredo vs 5arcia, (% Phil )3(C D. <ocobo, !;E3 Ta*i c lied with &arretela/ E. 5uilt proven beyond reasonable doubt. A. 4eservation to file separate civil action. 0o reservation, civil action is impliedly instituted in the criminal action. ). Fmployer's liability is subsidiary.

&ulpa A,uiliana !. :nly private concern. #. 4epairs the damage by indemnification. %. &overs all acts that are faulty or negligent. E. Preponderance of evidence. A. 0o reservation 2 it's independent from crime. ). Fmployer's liability is solidary .$abre Dr. vs &A, #A; S&4A E#)/ &ulpa &ontractual .i/ Pre-e*isting obligation between the parties .ii/ $ault or negligence is incidental to the performance of the obligation .iii/ "efense of having e*ercised diligence of a good father of a family is not available, =ust li-e in criminal action. Applied doctrine of 4espondent Superior, or 6aster and Servant 4ule. The result in the criminal case, whether ac,uittal, or conviction is irrelevant in the independent civil action under the &ivil &ode .D<8 4eyes "ionisio vs Alyendia, !3# Phil EE%, 'A(, cited in 6c-ee vs 1A&, #!! S&4A A%)/ unless ac,uittal is based on the court's declaration that the fact from which the civil action arose did not e*ist, hence the dismissal of criminal action carries with the e*tinction of the civil liability. .Andamo vs 1A&, !;! S&4A #3E, ';3 D. $ernan/ III. Doctrines/ *rinciples applied in Quasi+Delict or Tort cases availed of as defenses !. 0egligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. The failure to observe for the protection of the interest of another person, that degree of care, precaution, and vigilance which the circumstances =ustly demand, whereby such person suffers in=ury. .6c-ee vs 1A&, #!! S&4A A!(, ';#, citing <lac- 8aw "ictionary and Dudge &ooley D. "avide Dr/ #. Fmergency 4ule 2 one who suddenly finds himself in a place danger, and is re,uired to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails not to adopt what subse,uently and upon reflection may appear to be the better method, unless the emergency in which he finds himself is brought about by his own negligence. .5an vs &A, !)A S&4A %(G, 'GG, cited in 6cHee case/

,c-ee vs IAC $acts Two boys suddenly darted before 6cHee's car forcing 6cHee to swerve the car to avoid hitting the boys and in the process entered into the opposite lane and collided with the oncoming cargo truc- in the opposite lane. &ases to illustrate the e*ception e*pressed in unless the emergency in which he finds himself is brought about by his own negligence. "a.nera vs /icetas, 3 0 SC"A 1 2 $acts At # 33 A.6., 4eynera was driving his motorcycle fast and bump a cargo truc- he is tailing. 4aynera died. +eld The pro*imate cause of the accident was his negligence of 4aynera who was traveling behind the cargo truc-. +e had the responsibility of avoiding bumping the vehicle in front of him and who has control of the situation. The cargo truc- rear was fully lighted. Pro*imate cause is that cause which, in the natural and continuous se,uence, unbro-en by any efficient intervening cause, produce the in=ury and without which the result would have not occurred. Austria vs CA, 323 SC"A 0!! $acts Austria driving her car very fast bumped a cargo truc- improperly par-ed along the road. +eld Pro*imate cause of collision is Austria's driving rec-lessly such that he had no chance to avoid the collision which was of her own ma-ing. She had the last clear chance but failed to ta-e steps to avoid hitting the cargo truc- because she had no opportunity to do so.
*ersons 4ia&le for Quasi Delict) Culpa A(uiliana) Tort

Fvery person must, in the e*ercise with his rights and in the performance of his duty, act with =ustice, give everyone his due, and observe honesty and good faith .Art !; 0&&/Fvery person who, contrary to law, willfully or negligently causes damages to another, shall indemnify the latter for the same .Art #3 0&&/ and any person who willfully causes loss or in=ury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage .Art #! 0&&/ 5assmer vs 6ele7, 12 SC"A 08! 9 Contrar. to Good Customs $acts @ and 7 set their wedding for Sept E, !;AE. 1nvitations were distributed to relatives and friends. @edding dresses purchased, reception contracted etc. # days before the wedding 7 left for home in 6indanao and never heard again. +eld the mere breach of promise of marry is not an accionable wrong, but to formally set a wedding and go thru rites in preparing and publishing incurring e*penses is palpably and un=ustly contrary to good customs for which the defendant is answerable in damages under Art. #! 0&&.

Tortfeasor or @rongdoer I Person acting with fault or negligence causing damage to another is obliged to pay for the damages done .Art #!() 0&&/
4ia&ilit. for one:s act of fault or negligence

&ase Dr Carillo va *eople, 22$ SC"A 3!0 %$8 Anesthesiologist was convicted for negligence for the death of a child who died a day after operation for appendicitis. The physician did not ma-e an intensive preparation such as administration of antibiotics, gave and overdose of anesthesia and arbritary administration of 0ubian .pain -iller/ without e*amination of patient's weight which caused a heart attact. &ase ;ati(uin vs CA, <ul. #, :$0 - a surgeon left a piece of rubber in the woman's uterus in caesarian operation *erson 6icariousl. 4ia&le for Acts of =t>ers ?Art 21! @ The basis of vicarious liability is responsibility of a person over other persons under their legal authority, control or influence. 7iolation or remission of duty arising from such relationship ma-es 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 !!" 2. #uardians are liable for damages caused by the minors or incapacitated person $ho are under their authority and live in their company. (ibid" Art ##!. $amily &ode provides that parents and other persons e*ercising parental authority shall be civilly liable for the in=uries and damages caused by the act or omission or their unemancipated children living in their company and under parental authority sub=ect to the appropriate defenses provided by law. The <asis of the civil liability which is primary-direct and solidary imposed by law is the necessary conse,uence of parental authority e*ercise over their children. This authority imposed a duty upon parents to support them, -eep 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 e*ercise the diligence of a good father of a family .F*conde vs &apuno, !3! Phil GE%/ to prevent damage. &ase Tamagro vs CA, 2 $ SC"A #1$ $acts a !3 year old boy shot and air gun a girl resulting to her death. The boy was ac,uitted in the criminal suit for having acted without discernment. +owever a civil suit was filed against the boy's parent. +eld The Anglo-American Tort Principle of parental liability is a specie of 7icarious 8iability, also -nown as 1mputed 8iability.

This liability is made natural as logical conse,uences of the duties and responsibilities of parents e*ercising parental authority which includes controlling, disciplining and instructing their children. 1n this =urisdiction the parent's liability is vested by law .0&& and $&/ 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 =uris es de =ure, rebuttable-overcome by proof having e*ercised and observed all the diligence of a good father of a family .diligentissimi patris familias/. 0ote 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. &ase Cuadra vs ,onfort, 3# SC"A 10 $acts 5rade ) pupil 6aria & and 6aria 6 were assigned by teacher to weed the grass in the school premises. 6 found a plastic headband which she aloud she found an earthworm and tossed it to & hitting the latter right eyes resulting to loss of said eye. +eld The underlying basis of the liability imposed by Art #!() is the fault or negligence accompanying the act or omission there being no willfulness or intent to cause damage thereby and in Art #!G3 providing vicarious liability of parent although primarily. 1t was not shown that the parent could have prevented the damage as their child was in school and they have the right to e*pect their child to be under the care and supervision of the teacher. <eside the act was an innocent pran- 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. @here the minor or insane person causing damage to others has no parent or guardianB the minor or insane person's property shall answer the damage caused. .Art #!G#/ %. &eachers or 'eads 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 !!" EAconde vs Capuno, 2 1 *>il !83 $acts !A year old elementary student after attending 4iJal "ay Parade boarded a =eep on the way home. +e too- over the wheel and driving rec-lessly caused the vehicle to turn over resulting to death of two passengers. +eld 9pon being found guilty of double homicide with rec-less imprudence filed against him, a separate civil action was filed whereby the father was hold solidarily liable for damages under Art !;3% nor Art #!G3 0&&. The school head was held no liable being academic school.

,ercando vs CA, 1 ! *>il 818, 1$0 $acts A student of 8ourdes &atholic School in K& during recess cut a classmate with raJor blade. Parent of the in=ured student sued the culprit for damages. +eld 4eiterated F*conda case 2 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. *alisoc vs ;rillantes. 81 SC"A #8!, 1$31 $acts A !) year old student of 6anila Technical 1nstitute was -illed in a fist fight by a person who was not boarding in the school and of ma=ority age. +eld The school is being non-academic .arts and trade/, the head of the school and teacher in charge were solidarily liable with the assailant. Amadora vs CA 10 SC"A 31#, 1$!! <. Cru7 $acts 1t was summer of !;(# Alfredo Amadora about to graduate at the &olegio de San Dose-4ecoletes was shot to death by his classmate Pablito "affon. Alfredo went to the school to submit his 4eport in Physic. +eld Art #!G3 0&& applies to all schools, academic or non-academic. Teachers are liable for acts of their student e*cept 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 nonacademic schools in so far as torts committed by their students are concerned. The same vigilance is e*pected from the teacher over the student under their control and supervision, whatever the nature of the school where he is teaching. * * * * The distinction no longer obtains at present. * * * 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 e*ercise supervision over the pupils or students in the specific classes or sections to which they are assigned. 1t is not necessary that at the time of the in=ury, the teacher is physically present and in a position to prevent it. Thus, for in=uries 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 e*ercised over him. 1n 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 e*culpate itself from liability by proof that it had e*ercised the diligence of a bonus paterfamilias. Such

defense they had ta-en necessary precautions to prevent the in=ury complained of and thus be e*onerated from liability imposed by Art #!G3. <asis of teacher's vicarious liability is, as such, they acting in 8oco Parentis .in place of parents/. +owever teachers are not e*pected to have the same measure of responsibility as that imposed on parent for their influence over the child is not e,ual in degree. * * * 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 e*onerated of liability. .0ote 2 the court view on increasing students activism li-ely causing violence resulting to in=uries, in or out of the school premises 2 D. 5uttiereJ, Dr concurringly said many student * * * 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 re=ected. 1t seems most unfair to hold teacher liable on a presumption =uris tantum of negligence for acts of students even under circumstances where strictly spea-ing there could be no in loco parentis relationship. The provision of Art #!G3 0&& involved in this case has outlived its purpose. The court cannot ma-e law, it can only apply the law with its imperfections. +owever the court can suggest that such a law should be amended or repealed. ). &he state is responsible $hen it acts thru a special agent but not $hen the damage has been caused by the official to $hom the tas* is done properly pertains (i.e. function or duty" in $hich case Art 21+, 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 2 enactment of laws ma-ing the state suable as in this specific provision of the &ivil &ode, in 4A (!)3 2 85& of !;;! providing that 859 and their officials are not e*empt from liability for death or in=ury to person or damage to property .Sec #E/. The state 2 the state may not be sued without its consent. .Sec % Art L71 'G( &onstitution/ This is the doctrine of immunity from suit or principle of non liability .enuciated in the !;!3 case of $orbes vs &huco Tiaco ? &rossfield, !) Phil A%E/ was originally founded upon an old ma*im that The Hing can do no wrong prevailing during the medieval Fngland when the Hing was generally accepted as the State himself. @ith the development of democratic thoughts and institution, the concept eventually lost is moral force, the natural person--ing 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 ma-es the law on which the right depends. .Hawanana-oa vs Plyblan-, #3) 9S %E; cited by +ector S. "eleon, #33# Fd Te*tboo- on the Phil &onst/

The state .5ovt/ may be sued only with its consent which may be given i. e*pressly 2 thru duly enacted statutes such as the ff a. &A 0:. %#( amended by P" !EEEA providing conditions under which the state may be sued b. Administrative &ode of !;G( c. &ivil &ode Art #!G3 2 state acting thru special agent d. &harters of public corp vesting them with power to sue and be sued, eg. 4A ()!3 2 85& ii. 1mpliedly as in the ff cases a. @hen the 5ovt sues to recover money from individual who has claim against it, the latter may set a counterclaim. b. @hen the 5ovt 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. .0ational Airport &orp vs Teodoro, ;! Phil #3%, 6anila +otel Fmployees Assn. 7s 6anila +otel, (% Phil %E(/ The term State used in Art #!G3 0&& refers to the 5ovt of the 4epublic of the Philippines defined in Sec #, !;G( 4evised Administrative &ode as the &orporate 5overnmental entity thru which the functions of the govts are e*ercised 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 =uridical personality separate and distinct from that of the 4epublic of the Philippines .$ontanilla vs 6aliaman, !;E S&4A E;A D. Paras/ The functions of govt is classified into .a/ governmental or constituent involving e*ercise of sovereignty and is compulsory, .b/ proprietary or ministrant which is optional .$ontanilla vs 6aliaman/ The state 2 for the governmental function 2 the state can not be sued without its consent. $or the proprietary function of the govt may be sued without its consent which is presumed have been given in advance. 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 .6erritt $ontanilla case, !;E S&4A A3%/

Special Agents are of t'o Binds a. Public officials with a particular assigned tas-s but is specially commissioned to do such tas- foreign to his usual assigned governmental function. b. Private person 2 not a public official, commissioned to perform non-governmental function. A govt commissioning a private person for a special tas- is acting thru special agent within the meaning of Art #!G3 0&& The state assumes the role of an ordinary employer and will be held liable for the special agent's torts .$ontanilla vs 6alianan, MG;/ $acts +ugo 5arcia is a regular employee of 0ational 1rrigation Administration .01A/ a govt agency created by its charter 4A %)3! amended by P" AA# for the purpose of underta-ing integrated irrigation pro=ect. 5arcia driving the agency official pic--up bumped a bicycle ridden by $ontanilla resulting to his death. The victim's parent filed a civil action against 01A and its driver 5arcia who was found guilty of driving rec-lessly. 01A was ordered to pay, 01A appealed raising the issue that as govt agency performing govt function is not liable as being a part of the state, cannot be sued. +eld 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. @hile 01A 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 01A to be sued has already given, so that the rule on immunity from suit normally e*tended to govt agencies performing governmental functions is no longer available to 01A. <y waiving that immunity from suit in its charter, 01A open itself to suits. Thus 01A was held responsible for the negligent act of its employee 5arcia who is not a special agent. .D. Padilla separate opinion in $ontanilla vs 6aliaman 4esolution in !;;!, !;E S&4A E;;/ *alafoA vs Ilocos Corte *rov, 1 2 *>il 11!0 $acts Province's truc- 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. +eld 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. "osete vs T>e Auditor General, !1 *>il 8#3 $acts A fire bro-e out in the Fmergency &ontrol Administration .a govt office/ due to the negligence of its employee in igniting rec-lessly his cigarette lighter near a drum of gasoline in the office's warehouse resulting to destruction of buildings ad=oining the warehouse. 7ictims sued the officers of the Fmergency &ontrol Admin.

+eld As F&A or its officers were shown to have acted not as special agent of the govt in storing gasoline in the warehouse, the 5ovt is not responsible for the damages caused thru such negligence. "epu&lic vs *alacio, 23 SC"A !$$ $acts The 1rrigation Service 9nit, an officeBagency under the "ept of Public @or-s and &ommunication was sued for tort and the Sheriff of 6anila garnished the deposit of the 1S9 in the P0<, 6anila. +eld The 1S9 being an office in the govt and its fund is a public fund. 1t is being shown that the 1S9 was guilty of tort, however the sate not its fund is not liable because the 1S9 was not a special agent. 9nder Art #!G3 the state is liable only for tort caused by its special agent. GAA vs CA, 103 SC"A 2!, %!! $acts 5AA charges fees for the use of the Airport's terrace or viewing dec- where one gets a better view of arriving and departing passengers at the airport. The dec- had an elevated portion .E inches/ which caused a viewer to fall brea-ing his thigh bone. +e sued &AA for hospital e*penses. &AA raised the defense of being a govt agency sub=ect of immunity from suit. +eld @hile &AA is a govt agency however it is performing a proprietary functions 2 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. .6along vs P04, !%G S&4A )% which ruled that P04 is not immune from suit as it does not e*ercise sovereignty but purely proprietary 2 business function/ CIA vs IAC, 218 SC"A 3#, %$2 +eld "amages caused by the officials of 01A for its negligence in the construction of the canal which caused damages to nearby land, 01A is liable under Art #!() 0&& as 01A's official are not special agent in performing their official assigned duties and functions. 859 are liable for damages for the death or in=uries suffered by any person by reason of defective conditions of roads, streets, bridges, public building and other public wor-s under their control or supervision. .Art #!G;/ 859's and their official are not e*empt from liability for death or in=ury to persons or damage to property. .Sec #E, 4A (!)3 85& of !;;!/ ,unicipalit. of San Dernando, 4a Enion vas Dirme, 1$# SC"A 0$2, %$1 $acts 6unicipal's dump truc- on way to the 0aguilian 4iver to get gravel and sands for the repair of roads .a governmental function/ collided with a passenger =eep resulting the death of passenger of the latter vehicle. &ivil action was filed against the 6unicipality.

+eld 6unicipalities being agencies of the State, when performing governmental functions en=oy sovereignty and thus immune from suit unless it is shown that they are performing proprietary function. +owever, they may be held liable if it can be shown acting thru a special agent. The 6unicipality's driver is not a special agent and so the 6unicipal is not liable, only the driver. *alma vs Graciano, $$ *>il $2 $acts A governor and a 6ayor filed a criminal charge which was dismissed for being groundless. They were sued. +eld The prosecution of a crime is a governmental function, not a corporation action. 1n the discharged thereof, the Province or &ity or 6unicipality is not liable for tortuous acts of its officers. :nly the public officers acting tortuously .beyond the scope of their authority/ are personally liable because the mantle of immunity from suit accorded to their office is not available for their tortuous acts. "epu&lic vs Sandoval, 2 SC"A 128, 1$$3 $acts Dan ##, !;G( -nown as <lac- Saturday 2 the 6endiola 6assacre of 4allyist who were shot as they march toward 6alacaNang. +eirs of the dead rallyist sued the 4epublic and 6ilitary :fficers and soldiers. Dudge Sandoval dismiss their suit invo-ing State's immunity from suit. +eld 1nstances when the suit against the state a. when the 4epublic 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 d. when the govt perpetrated in=ustice on the citiJen ."e los Santos vs 1A&, ##% S&4A !!/ 1n this case, the state is not liable for the civil liability arising from criminal acts of the military for violating <P <lg GG3 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 li-e any other private persons for doing wrongful acts.

De los Santos vs IAC, 223 SC"A 11, %$3 $acts 6in of Public wor-s while carrying on its pro=ect of constructing roads and cree-s too- over the portion of privately owned land without or against the consent of the owner who sued. 1mmunity from suit was invo-ed. +eld when a govt thru its agency ta-es away private property without going to legal process of e*propriation and paying =ust compensation, a suit may be properly maintained against the govt. The civil action may be based under Art %# 0&& and the constitutional provisions on rights against privation of property without due process of law and without =ust compensation. The doctrine of immunity from suit cannot serve as an instrument for the perpetration of in=ustice on its citiJens. .D. 4omero/ "esume on State:s lia&ilit. 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 #!() 0&& and not Art #!G3 0&& 4ationale there can be no legal rights as against the authority that grants such rights. This is -nown as doctrine of immunity from suit which is very essence of sovereignty. 1t is e*pressed in the constitution that the state cannot be sued without its consent .Sec %, Art L71/. The state's consent is manifested e*pressly in the form its legislative enactments of statues .Art #!G3 0&&, Sec #E 85& of !;;!, Act 0o %3G% 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 in=ustice to its citiJen. -. .mployers/ 0aster a. :wner and 6anager 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. Fmployer 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 tas-s. <asis of 8iability is not 4espondent 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-$amilias, .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 employee-servant .culpa eligiendo/ or in the supervision over their employee-servants .culpa in vigilando/. This negligence is prima facie presumption =uris tantum- overcome or rebutted by proof that they have observed and e*ercised all the diligence of a good father of a family .diligantissimi bonus fater familias/. The theory is deduced from the last par of Art #!G3 0&& providing the

responsibility shall cease upon proof of e*ercise of the diligence of a good father of a family to prevent the damage. The term 6anager in Art #!G3 is used in the sense of employer, not employee. &ase *>il "a&&it ;us 4ines Inc vs *>il Am Dor'arder, ,ar 2#, 1$3# $acts An action for damages was brought against Phil Am $orwarded and its 6anager <alingit for negligent act of their driver. <alingit moved to dismiss the action against him for though he was manager, however, he was =ust an employee of the company. +eld <alingit is not liable because he was =ust a mere employee though designated as 6anager. The relationship of employer-employee or master-servant must first be established to e*ist before the employerBmaster will be held liable. &ase *>il S>ell *etroleum Co vs CA, 221 SC"A 3!$ $acts 5as station proprietor was sued for selling adulterated gas with water. +e settled amicably the suit and then Phil Shell for the negligence of $eliciano who was hired in underta-ing hydro pressure test in the underground storage tan- which was crac-ed causing water to seep into the tan-. +eld Phil Shell is not liable because $eliciano was not its employee. 1t was shown that Phil Shell has no control over $eliciano who do business of his own, used his own tools and wor-ed on his own time charging a fi*ed lump sum for every piece of wor-. $eliciano was an independent contractor and not an employee and thus he alone is liable. &ase Cuison vs Corton F /arisson Co, ## *>il 1! $acts :ra was employed by defendant company charged in directing and controlling transport business of the &o. :n the day of the accident, one of the company's truc- 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 truc- was hit by a log falling from the truc-. +eld :ra 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 emplo.er:s lia&ilit. under Art 21! CCC and "evised *enal Code . &ivil &ode !. "irect and primary 2 solidary, employer is sue even without suing the employee #. "efense of e*ercise of diligence of a good father of the family to be relieve of liability %. Fmployer is liable even if not engaged in business

E. Proof of negligence is by mere preponderance of evidence 4evised Penal &ode !. Subsidiary 2 arising after the employee's guilt #. "iligence of a good father is not a defense %. 6ust prove employer is engaged in business E. Proof beyond reasonable doubt of evidence -. 1$ners of 0otor vehicle (Art 218)" a. :wner is in the motor vehicle is solidary liable with his driver b. :wner is not in the motor vehicle with the driver is subsidiary liable &ase C>apman vs Ender'ood, 23 *>il 338 $acts 9nderwood riding in his car and his driver suddenly turned to the wrong side of the street and hit the plaintiff. "river was negligent. @as the owner liable tooO +eld @here the owner had reasonable opportunity to observe his driver and to direct the latter to cease there from, becomes himself responsible for such acts. :n the other hand, if the driver, by sudden act of negligence and without opportunity to prevent the acts or its continuance, the owner is not responsible. Caedo vs Tu ->e T>ai, 20 SC"A 81$ $acts >u was riding in his &adillac driven by <ernardo saw a carratela about G meters away. 1nstead of slowing down veered to the left to overta-e and in so doing the car hit the carratella's left wheel and s-idded obli,uely hitting the on coming car of &aedo who despite slac-ened speed to avoid the collision was hit resulting to the in=uries of &aedo and his passengers. >u's driver was negligent. @as >u liableO +eld The basis of the masterBemployer's liability in civil law is not respondent superior but rather the relationship of Pater $amilias. The theory is that ultimately the negligence of the servant, if -nown to the master and susceptible of timely correction, reflects the master's negligence if he fails to correct it in order to prevent the in=ury or damage .D. 6a-alintal/ The owner of the car >u 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 >u to assess the danger involved and warn the driver accordingly. $ormer owner of 6otor 7ehicle are liable for the tortuous acts of the new owner.

&ase E(uita&le 4easing Corp vs Su.om, Sept #, 2

$acts F,uitable sold to 8im a $uso tractor. After the sale's price was fully paid, a deed of sale e*ecuted by F,uitable in favor of 8im who had not registered the sale with the 8T:. @hile the tractor was driven by 8im's employee, it rammed into a house causing death and in=uries and damages. +eld This court .S&/ 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. &onse,uently it is directly and primary liable for the conse,uences 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 F,uitable remained the registered owner, it could not escape primary liability.
DAMAGES The law governing damages is found in Art 2195 to 2235, NCC, which reincor orated some of the ! anish Civil Code and ado ted some rinci les of the American law "Civil code commission re ort# $amages "%atin & $amnum or $emo ' to ta(e awa)# refers to the harm done and what ma) *e recovered+ ,n-ur) refers to the wrongful or unlawful or tortuous act+ $amages is the measure of recover) while in-ur) is the legal wrong to *e redressed+ There ma) *e damage without in-ur) "damnum a*s.ue in-uria# and an in-ur) without damages+ "15 Am /ur 300# De la Rama Steamship vs Tan, 99 Phil 1034 & 1ov2t agenc) terminated contract of agenc) under its right sti ulated in the contract, although the agent suffered damages+ Janda vs Lepanto, 99 Phil 19 , 19!" & in com liance with the law "3A 529# urchaser of shares of stoc( ain in esos des ite agreement to a) in dollar *ecause at the time the law declared sti ulation as void to a) in currenc) other than esos+ Sa#a vs $A, 1%9 S$RA !0 & restated the doctrine of 4ui /ure !uo 5titur Nullum $amnum ' one who e6ercise his right does no in-ur) and if damage result, it is damnum a*s.ue in-uria+ The case made the distinction *etween damage and in-ur)+ ,n-ur) of loss arises from the violation if legal right while damages refer to mone) or ecuniar) com ensation which the law im ose or awarded for the in-ur) done+ The Civil code2s rovisions on damages are a lica*le to all o*ligations arising from "1# %aw, "2# Contracts, "3# 4uasi Contracts, "7# $elicts & crimes, and "5# 4uasi-delicts ' tort+ "Art 2195 NCC# Com ensation for wor(men and other em lo)ees are governed *) s ecial law and rules governing damages laid down in other laws shall *e o*served insofar as are not in conflict with the Civil Code+ "Art 2198 NCC# This ma(es the Civil Code2s rovisions on damages as the general law+

&smael Ma'itime $o'p vs Avelino, 1!1 S$RA 333 9eld: The heirs of the deceased seaman have the choice of availing remed) to recover damages, wor(men2s com ensation law-la*or code for wor( connected in-ur), or for tort under the Civil Code for negligence of the em lo)er+ 9owever, once the) ursue one, the) are no longer free to avail the other+ "Cited ;lorensca vs <hil =6, 138 !C3A 171 & case of miners who died in a cave-in+ () *inds o+ Dama,es There are 8 (inds of damages, namel) 1+ Actual or com ensator) 2+ >oral 3+ Nominal 7+ Tem erate or moderate 5+ %i.uidated 8+ =6em lar) or corrective Gene'al $lassi+i-ation o+ dama,es 1+ $amages ca a*le of ecuniar) com utation & estima*le which must *e dul) esta*lished or roven as in actual or com ensator) damages and loss of ro ert) lost of earning ca acit)+ 2+ $amages inca a*le of ecuniar) estimation for which no roof is needed and the assessment is left to discretion of the court+ "Art 2218# $amages: ;or the same fault) or negligent act or omission causing damages it ma) roduce multi le lia*ilities, namel) "1# criminal lia*ilit) and "2# civil lia*ilit) which in turn ma) *e "a# a Civil %ia*ilit) arising from a crime under the 3evised <enal Code, or "*# Civil lia*ilit) arising from cul a e6tra-contractual or .uasi delict or cul a a.uiliana under the Civil Code and "c# civil lia*ilit) arising from cul a contractual or *reach of contract+ The lia*ilit) arising from cul a a.uiliana is entirel) se arate and distinct the civil lia*ilit) arising from a crime+ 9owever the laintiff cannot recover damages twice for the same act or omission+ "Art 21?? NCC# The ac.uittal or conviction in the criminal case is entirel) irrelevant in the civil case, unless the ac.uittal is declared that the fact from which the civil action arose did not e6ist which e6tinguished the criminal lia*ilit) and the civil lia*ilit)+ "Andamo vs ,AC, 191 !C3A 2@7# The aggrieved art) has the o tion to choose which of the actions that ma) *e filed *ecause dou*le recover) or damages is rohi*ited+ "Airata vs Bchoa, 01 !C3A 7?2#+ E.empla'/ o' -o''e-tive dama,es These are damages im osed *) wa) of e6am le or correction for the u*lic good, in addition to the moral, tem erate, li.uidated or com ensator) damages "Art 2229 NCC#+ This damages cannot *e recovered as a matter of right+ This court will decide whether or not the) should *e ad-udicated, "Art 2233# and an) sti ulation renouncing in advance such damages shall *e null and void+ "Art 2237 NCC#+ Condition for the award "Art 2237 NCC#

<laintiff must rove that he is entitled to the following: A+ Com ensator) $amages C+ >oral $amages C+ Tem erate $amages $+ $efendant acted with fraudulent, malevolent, o .uasi contract case+ "Art 2232 NCC# ressive, rec(less or wanton manner in contracts or

=+ <resence of aggravating circumstance in the commission of criminal offense & as a art of civil lia*ilit)+ "Art+ 223@ NCC#+ 0) De+endant a-ted 1ith ,'oss ne,li,en-e in 23asi4deli-ts) Ge'man Ma'ine A,en-ies 5n-) 6s 7LR$, 3!0 S$RA 871 ;acts: The shi radio officer was ta(en ill while the shi was in New Dealand, $es ite notice thereof *) the shi 2s ca tain, the shi roceeded with the vo)age and reached the <hil in 1@ da)s and )et the sic( radio officer was not immediatel) ta(en to hos ital for medical treatment+ 9eld: !hi owner is lia*le for moral damages for the h)sical suffering and mental anguish caused to 3adio Bfficer+ <5@,@@@ in moral damages is ro er+ As the fact of negligence of the shi 2s ca tain was not onl) shown to have e6isted *ut it was deli*eratel) er etrated *) the ar*itrar) refusal to commit the ailing radio officer to a hos ital in New Dealand or at the nearest ort resulting to his ermanent artial disa*ilit), the award of e6em lar) damages for <5@,@@@ is ade.uate and reasona*le+ ,n this case the awarding of the e6em lar) damages is to serve a correction as well as an e6am le for shi owners to loo( after the welfare of their em lo)ees first to that of their customers-cargo-owner+ The rationale *ehind the e6em lar) damages is to rovide an e6am le or correction for u*lic good and not to enrich the victim+ "<eo le vs Agustin, 35@ !C3A 218, 2@1# Att)2s fees ma) *e recovered when e6em lar) damages are awarded+ "Coca cola *ottlers <hil vs 3o.ue, 3@5 !C3A 215# P$5( vs $A, 3!0 S$RA 44", 801 9eld: Can(s are lia*le for tortuous act of its officers an em lo)ee within the course or sco e of thei em lo)ment+ ,n this case, *oth the drawee and collection *an(s were negligent in failing to select and su ervise their em lo)ees resulting to the encashment of the chec( to the s)ndicate instead of the rightful erson+ 7ominal Dama,es 9A't :::1 7$$; These are ad-udicated in order that a right of the laintiff which has *een violated or invaded *) the defendant, ma) *e vindicated or recogniEed, and not for the ur ose of indemnif)ing the laintiffs for an) loss suffered *) him+

Nominal $amages are merel) for the vindication of a right that has *een violated, not for indemnification of the losses suffered+ "ventanilla vs Centeno, /an 20, 81#+ Case of a law)er who was negligent in filing a eal time tho he was not lia*le for actual damages+ Almeda vs $a'ino, Jan 13, :003 ;acts: C sold a lot on installments to A+ A last sold the same to another, and des ite of demands, A refused to a) the un aid *alance of the urchase rice owing to C+ 9eld: The vendor C has the right to the un aid *alance to the lot sold to A who violated such right when he refused to a)+ ;or this, C is entitled, aside from the a)ment of the un aid *alance, to a nominal damages+ Nominal $amages ma) *e awarded to a laintiff whose right has *een violated or invaded *) the defendant for the ur ose of vindicating or recogniEing that right and not for indemnif)ing the laintiff for the loss suffered+ ,ts award is thus not for the ur ose of indemnification for a loss *ut for the recognition and vindication of a right+ Fhen granted *) the courts, the) are treated not as an e.uivalent of a wrong inflicted *ut sim l) a recognition of the e6istence of a technical in-ur)+ A violation of the laintiff2s right, even if onl) technical, is sufficient to su ort an award of nominal damages+ !o long as there s a showing of a violation of a right of the laintiff, an award of nominal damages is ro er+ Tempe'ate o' Mode'ate Dama,es 9A't) :::4 7$$# These are damages which are more than nominal *ut less com ensator) damage which ma) *e recovered when the court finds that some ecuniar) loss has *een suffered *ut the amount can not, from the nature of the case, *e roved with certaint)+ Phil Tele,'aph and Telephone $o'p vs $A, Sept) 3 :00:+ ;acts: <TGT *reached its contract in failing to remit mone) order sent *) laintiff on time+ 9owever the latter failed to rove actual damages and that <TGT was in *ad faith+ 9eld: =ither Tem erate or nominal damages could *e awarded+ A'aneta vs (an< o+ Ame'i-a, 40 S$RA 144 ;acts: A issued chec(s in a)ment of -ewels urchased+ The chec(s were dishonored des ite of the sufficienc) of fund to cover the chec(s+ The *an( a ologiEed for the errors of its em lo)ee+ Again, similar incidents su*se.uentl) occurred+ Thus a sued the *an(+ 9eld: Fhile A ma) not *e a*le to rove the rofit he would have net had the -ewelr) transaction *een ushed thru, his claim for tem erate damages is -ustified+ () *inds o+ Dama,es= Gene'al -lassi+i-ation 2+ $amages inca a*le of ecuniar) estimation+ Fhile roofs is not needed, however, it is essential that the com lainant must satisfactoril) show the e6istence of the factual *asis of the damage "Art 221?# and its casual connection to the defendant2s wrongful acts+ ">alonEo vs 1alang, 1@@ <hil 18H 3aagas vs Tra-a, 22 !C3A 038# These damages, nominal damages, tem erate damages and e6em lar) or corrective damages+ The rinci les of the general law on damages are ado ted insofar as the) are not inconsistent with the Civil Code "Art 2190#+ The fundamental rinci le of law of damages

is that one in-ured *) a *reach of contract or *) the negligent act or omission shall have fair and -ust com ensation commensurate with the loss sustained in the conse.uence of the defendant2s act which give to the action+ Thus actual ecuniar) com ensation is the indemnit) for his loss and to *e laced as near as ma) *e in condition which he would have occu ied had he not suffered the in-ur) com lained of+ Bn the other hand, the defendant shall not *e lia*le for damages more than the actual loss which he has inflicted *) his wrong+ Bnl) ro6imate, not remote, damages are recovera*le+ Fhile the same fault) or negligent act or omission ma) give rise to multi licit) of suits, however under Art 21??, NCC, the laintiff cannot recover damages twice for the same act or omission, ,f the laintiff recovers from the defendant under the civil code, he cannot recover damage from the same defendant under 3evised <enal Code on the remise that erson criminall) lia*le is also civill) lia*le+ (atan,as La,3na Ta/a#as (3s $o vs $A, "4 S$RA 4: ;acts: Cus collided with a car driven *) 3e)es resulting to death of 3e)es and in-uries to his assengers Cardena+ Cardena and heirs of =liEondo sued the Cus o erator whose driver was found negligent+ The defendant *us o erator contended that it was remature to roceed with the civil case ending final resolution of the criminal case against their driver+ 9eld: =m lo)er2s lia*ilit) is made clear under Art 210@ and under Art 21?? is entirel) se arate and distinct from the civil lia*ilit) arising from negligence under 3evised <enal Code+ Cut the laintiff cannot recover damages twice for the same act or omission+ Cul a a.uiliana is an inde endent source of o*ligation *etween two ersons not formerl) *ound *) an) -uridical tie+ ">anressa# ,t is not re.uired that the in-ured art) should not see( out a third erson crimirnall) lia*le whose rosecution must *e a condition recedent to the enforcement of the civil right+ "3a(es vs A1< Co, ? <hil 359# The civil lia*ilit) under .uasi delict is contracted without agreement or consent, thus cul a e6tra contractual, on the rinci le that where harm, loss or damage has *een caused to a erson thru fault or negligent act the aggrieve art) is entitled to *e indemnified+ "Cangco vs >33, 30 <hil ?80# M>RAL DAMAGES 4) $ases 1he'e Mo'al Dama,es ma/ #e 'e-ove'ed o' A1a'ded a+ Acts mentioned in Art 3@9 & disres ect to the dead or wrongful interference with funeral *+ Arts and actions referred in Articles on human relation & 21, 28, to 3@, 32 to 35 c+ Fillful in-ur) to ro ert) committed maliciousl) or fraudulentl) "Art 222@, ;rancisco vs 1!,!, >ar 3@, 283# d+ Creaches of contracts where the defendant acted with fraudulentl) or in *ad faith+ "Art 222@# Creaches of contract of carriage resulting to death or in-ur) of assengers "Art 1?87 in relation to Art 22@8 "3# <hil 3a**it *us lines inc vs =asguerra, 11? !C3A ?71# $alalas vs $A, 33: S$RA 3!", :000 ;acts: Calalas2 -ee was im ro erl) ar(ed with its rear ortion rotruding from the *oard shoulder of the road "violation of %TTC#+ <assenger !unga who was sited on wooden stool as e6tended seat alighted to

give wa) to another assenger alighting from the inside and in the rocess he was *um ed *) an overta(ing truc( owned *) !alinas+ !unga sued Calalas & *reach of carriage+ Calalas sued !alvas & Tort 9eld: Fhile moral damages are not recovera*le in actions for *reach of contract for it is not one of the items enumerated in Art 2219, NCC, however, the e6ce tion is in the cases of misha resulting to the death or in-ur) of assenger unddder Art 1?87 in relation to Art 22@8 "3# NCC and in cases in which the carrier is guilt) of fraud or in *ad faith+ ,n this case the ruling in Calamas vs !alvas is not *inding in the case of !unga vs Calalas+ 3es /udicata does not a l) *ecause !unga is not a art) to the tort case where !alva was found at fault and lia*le to Calalas+ Thought *oth cases has the same issue of negligence, however, each is distinct and se arate from the other+ "Creach of contract and tort# $efense of ro6imate cause is not availa*le in *reach of contract of carriage: onl) in tort cases+ Neither is the defense of caso fortuitous where it is attended to *) negligence which in Calalas case were overloading and ar(ing im rorel) which are vioation of tle %TTC+ >oral damages cannot *e award in the a*sence of an) in-ur) or factual *asis+ There must *e leading and roof of moral suffering, mental anguish, fright, wounded feelings ad similar in-ur)+ "Crent 9os ital ,nc vs N%3C, 292 !C3A 3@7, 290H <eo le vs Aguilar, 379 !C3A 292, 290# M>RAL DAMAGES, A'ts ::1 to :::0, 7$$ 1+ >oral damages are not intended to enrich a com lainant at the e6 ense of the defendant+ The) are awarded onl) to ena*le the in-ured art) to o*tain means, diversion or amusements that will serve to alleviate the moral suffering he has undergone *) reason of the defendant2s cul a*le action+ "/+ <araE, <rudencio vs Alliance Trans ort, >ar 18 20?# 2+ Conce t - >oral damages include h)sical suffering, mental anguish, freight, serious an6iet), dismirched re utation, wounded feelings, moral shoc(, social humiliation, and similar in-ur)+ Thought inca a*le of ecuniar) com utation, it ma) recover if the) are the ro6imate result of the defendant2s wrongful act or omission+ "221?# >oral damages are not unitive in nature, *ut are designed to com ensate and alleviate in some wa) the h)sical suffering, mental anguish, fright, serious an6iet), etc+ This is so *ecause moral damages are in the categor) of an award designed to com ensate the claimant for actual in-ur) suffered, not to im ose a enalt) in the wrongdoer+ "=.uita*le %easing Cor vs !u)om et al, !e t 5, 2@2# Cor oration are not entitled to moral damages *ecause an artificial erson e6isting onl) in legal contem lation-legal fiction, have no feelings no emotions, no senses and therefore, it cannot e6 erience h)sical suffering and mental anguish, sorrows and grief of life- all of which can not *e suffered *) artificial erson+ "National <ower Cor vs <hil Crothers Bceanio, ,nc, Nov 21, 2@@1# 3+ Conditions to recover moral damages & while no roof of ecuniar) loss is necessar) in order to recover and the assessment is left to the discretion of the court "Art 2218 NCC#+ 9owever, the com lainant must satisfactor) show the ff: a+ factual *asis for the award which is the in-ur) or wrong doing of the defendant *+ the in-ur), i+e+ h)sical suffering etc are the ro6imate result of the defendant2s wrongful act or omission "221?# c+ casual connection or relation *etween the actual in-ur) and the wrongful act or omission of the defendant+ "=.uita*le %easing Cor vs !u)om#

4) $ases 1he'e mo'al dama,es ma/ #e 'e-ove'ed o' a1a'ded 9::19;

a+ Criminal offenses resulting to h)sical in-uries "Art 33 NCC and >ade-a Caro, 128 !C3A 293# *+ 4uasi-delict causing h)sical in-uries c+ Adulter) and concu*inage

d+ A*duction, 3a e, !eduction and other malicious act, victim and arent are entitled e+ ,llegal search f+ ,llegal ar*itrar) detention or arrest

g+ %i*el, slander or other form of defamation "Art 33# h+ >alicious rosecution

=&ligations and lia&ilities arising from >uman relation The civil code's provisions dealing on human relation .&hap # Preliminary Title/ are now, not based in the Spanish &ivil &ode, formulated some basic principles that are to be observed for the rightful relationship between human beings and for the stability of social order. 1t was designed to indicate certain norms that spring from the fountain of good and conscience. .4eport, &ode &ommission, p. %;/ These provisions provide for specie of Special Torts A. The catch all provisions !. Abuse of rights 2 every person must, in the e*ercise of his rights and in the performance of his duties, act with =ustice, give everyone his due, and observe honesty and good faith. .Art !;/ The elements are the ff i. There must be a legal right or duty ii. F*ercise of such right or duty in bad faith iii. Pre=udices or causes damage to another #. Sanction 2 Penalty 2 every person who, contrary to law, willfully or negligently causes damages to another, shall indemnify the latter for the same .Art #3/ This reiterated in Art #!() and #!;E dealing on ,uasi delicts holding that person are liable for damages caused by their fault or negligence. .Prof. Darencio opined that this provision refers to willful or negligent acts contrary to law not constituting ,uasi delict or delict/ %. &ontra <onus 6ores- any person who willfully causes losses or in=ury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damage .Art #!/

Quisim&ing vs Icao, 38 SC"A 132

+eld under Art #!, for a married man to force a woman not his wife to yield to his lust constitutes a clear violation of the rights of his victim that entitles her to claim for compensation for the damage caused. 6an's act is contrary to moral, good customs or public policy. *e et al vs *e, # SC"A 2 "efendant is married 2 separated and correlative of the plaintiff unmarried woman, #E years of age. "efendant fre,uently visited the girl's house on the prete*t of teaching her how to pray the rosary. They fell in love and had clandestine trust until they disappeared. +eld 0o conclusion can be drawn from the fact that defendant, not only deliberately, but thru a clever strategy, succeeded in winning the affection and love to the woman to the e*tent of having illicit relations with her. The wrong caused to her and her family is contrary to morals etc as contemplated in Art #!. 5assmer vs 6ele7, 12 Scra 08! $acts @ ? 7 applied for a license to contract of marriage. The wedding was set, invitations were printed and distributed to relatives, friends. @edding dresses purchased .bridal, flower girls maid of honor, etc/, reception and other amenities reserved. <ut before the wedding, the boy left for 6indanao and never returned. +eld The mere breach of promise to marry is not an actionable wrong. <ut to formally set a wedding and go thru all those preparation and e*penses and publicity only to wal- out is contrary to good custom for which defendant is held answerable for damages under Art #!. ;. EnGust enric>ment !. Fvery Person thru an act or performance by another or any other means, ac,uires or comes into possession of something at the e*pense of the latter without =ust or legal ground shall return the same to him .Art ##/. A community was raised by lawless elements and too- personal belongings of the helpless residents. @hen the 5ovt forces came driving the lawless elements and restoring peace and order, the owner of the house occupied by the lawless element found several personal belongings of other left by the fleeing outlaws. The person owning those personal belonging ta-en by the outlaws have the right to recover them from the finder under Art ##. #. Fven when an act or event causing damage to another's property was not due to the fault or negligent of the defendant, the latter shall be liable for indemnity if thru the act or event he was benefited .Art #%/ 1llustration given by the &ode &ommission @ithout A's -nowledge, a flood drive his cattle to the cultivated highland of <. A's cattle were saved but <'s crop were destroyed because they were eaten by the cattle. @hile A was not at fault however he was benefited when his cattle were saved from the flood aside from being well fed. 1t is butt right and e,uitable that A should indemnify < for the loss of his crop. :therwise

the in=ured party < would be un=ustly enriched at the e*pense of the party who received the benefit. See Arts #!E# and #!E% &. 7iolation of dignity, personality, privacy and peace of mind of neighbors and other persons .Art #)/ Fvery person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief .!/ Prying into the privacy of another's residence .#/ 6eddling with or disturbing the private life or family relations of anotherC .%/ 1ntriguing to cause another to be alienated from his friendsC .E/ 7e*ing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. ". "ereliction of official duty by public official .Art #(/ Any person suffering material or moral loss because a public servant or employee refuses or neglects, without =ust cause, to perform his official duty may file an action for damages and other relief against he latter, without pre=udice to any disciplinary administrative action that may be ta-en. This provision was designed to redress complaints of the people that in dealing with public officials and employees that they are not properly attended to while those who are rich influential and powerful are given prompt and even servile attention. @orst is some public officialsB employee too- advantage of their position, e*pectly or demand bribe for the performance of their duty which lowered the morals of public service and seriously undermined public confidence of the govt. Hulueta vs Cicolas, 1 2 *>il !88 $acts P filed a complaint against the 5overnor of 4iJal for libel. After investigation the $iscal absolved the 5overnor on the ground that there was no prima facie evidence for filing the libel complaint. P then filed a civil action against under Art #( 0&&. +eld The fiscal of absolving the 5overnor upon finding no sufficient evidence to establish a prima facie case is not refusal without =ust cause to perform his official duty to file the complaint for libel. The fiscal is vested with authority and discretion to determine whether or not there is sufficient evidence to =ustify the filing of an action, and having control of the prosecution of a criminal case, the fiscal cannot be sub=ected to direction from the offended party. Action dismissed.

F. 9nfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other un=ust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage. .Art #G/ $. Ac,uittal in criminal case on the ground that guilt has not been proved beyond reasonable doubt. A civil action for damages for the same act or omission may be instituted and such action re,uires only preponderance of evidence. .Art #;/ The rationale for this is provided in Art #!(( 0&& which states the responsibility for fault or negligence is entirely separate and distinct from the civil liability arising from negligence under the 4evised Penal &ode but the plaintiff cannot recover twice for the same act or omission. +owever, if the ac,uittal is based on proof that the accused did not commit a crime, or that no crime was committed, or because he is =ustified or e*empt from criminal liability, no civil action may be instituted because the ac,uittal on those ground constitutes res ad=udicate. *C; vs Capiton, $! *>il 2!0 +eld Ac,uittal of an accused in Fstafa case on the ground that his guilt has not been satisfactorily established is e,uivalent to one on reasonable doubt and does not preclude filing of civil action for the same act or omission under Art #; 0&&. +owever to protect the person from harassment, the law authoriJes defendant to file a motion in court re,uiring the plaintiff to file a bond to answer for damages in case complaint should be found malicious.

AIMEE ROSE M. NAVARRO

Torts are civil wrongs other than breaches of contracts, for which the law provides a remedy. Traditionally these were when someone invo-ed the phrase 1 am going to sue you. A tort is a general term for a civil action in which one party see-s a result from a court. Some e*amples of torts are negligence, battery, false imprisonment, and assault. @hat -inds of situations does tort law deal withO Tort laws deal with situations where one party has wrong another party in some fashion. These are typically claims for damages or one party claims a violation of rights. The in=ured party can be asserting a criminal action as well, but this is usually not the case. 1s a tort a crimeO Tort laws and criminal laws may overlap in some instances, but torts are civil actions distinct from criminal actions. $or e*ample, a battery may occur and the in=ured party may press charges criminally and also file a claim against the aggressor for damages. These damages could be for pain and suffering or medical bills. These are distinct from the punishment aspect of the criminal action. @hat is the tort litigation systemO The tort litigation system is a legal framewor- in which lawyers operate to effectuate and settle tort claims. Typically litigation involves filing a claim, performing discovery, attempting to settle the case and, if necessary, ta-e the case to trial. 5>at are mass tortsI 6ass torts are a special type of tort action that is filed. Fffectively, a mass tort is one claim =oining a large group of people to sue an entity for a wrong that has affected them all in some common fashion. Typically the group is larger than #A people and the group has a representative that has interests common to all of those in the group. 5>. do 'e need tort la'I @e need tort law because there are several situations where mere punishment of the criminal does not provide an ade,uate remedy. @hile reforming or punishing the interests of the criminal and society at large, it fails to remedy the wrong created. Tort law creates remedies to ma-e parties whole again in the form of in=unction or damages. 5>at is a tort lia&ilit.I Tort liability is what results when a party has violated tort law. Put simply, if one party has in=ured another in an economic fashion, it is li-ely that they have violated tort law. $or e*ample, if A were to steal <'s =ac-et, he would be liable under tort liability for the value of the =ac-et, in this instance, for the tort of conversion.

@hat is a tortfeasorO A tortfeasor is one who violates tort law by in=uring another in some fashion. This in=ury can by physical, economic, or mental. $or e*ample, when someone stri-es you in the mouth, you are the in=ured party, and the aggressor is the tort feasor, in this instance, for the tort of battery. Intentional Tort 5>at is an intentional tortI An intentional tort is one where one has the volition to commit a certain act and another is harmed by it. All intentional torts re,uire four things !/ act #/ intent %/ causation and E/ conse,uence. A person must perform an action, with an intent, this intent need not necessarily be the one the results, must cause some result and create harm as a conse,uence. @hat are common law intentional tortsO +ere are some common law torts conversion, trespass to land, trespass to chattel, battery, assault, false imprisonment and intentional infliction of emotional distress. 5>at is &atter. under intentional common la'I <attery, put simply, is un=ustified or improper touching. The aggressor acts intentionally to cause harmful or offensive contact with the victim's person. The tortfeasor must have the intent to cause harmful or un=ustified contact at the outset, and harm must result. @hat is assault under intentional common lawO Assault defined is when a defendant acts intentionally cause the victim's reasonable apprehension of immediate harmful or offensive contact. The ,uestions to as- are @as the Plaintiff aware of the harmO @as the harm imminentO 1f the answer is yes to both of these ,uestions, then assault has occurred. +owever, the "efendant must desire or be substantially certain that his action will cause the apprehension of immediate harmful or offensive contact. @hat is false imprisonment under intentional tort lawO $alse imprisonment defined is the direct restraint of someone without ade,uate legal =ustification or an assault on dignity. This occurs when a "efendant intentionally causes confinement or restraint of the victim within a bounded area, victim must be aware of the confinement at time of restraint +owever, the "efendant must act intending to confine the P wBin certain fi*ed boundaries. Additionally, there must be no reasonable means of escape. @hat is intentional emotional distress under tort lawO 1ntentional 1nfliction of Fmotional "istress, or 11F", occurs when Plaintiff intentionally or rec-lessly causes the victim severe mental distress by e*treme and outrageous conduct. The

victim usually doesn't have to suffer physical manifestations of the mental distress. This is a difficult standard to fulfill, the conduct must be beyond all possible bounds of decency and to re as atrocious, and utterly intolerable in a civiliJed community. @hat is a consent law tortO 1 have no idea what this ,uestion is as-ing. 1 will assume it is tal-ing about the defense of consent. &onsent is a defense to intentional torts. &onsent occurs when the asserted victim gives permission what would otherwise be tortuous is instead privileged. This assent can be e*press or implied by law, community customs, or merely apparent from conduct. @hat is necessity under tort lawO The law allows one to do certain actions which would be unlawful otherwise, if it is absolutely necessary. The tort defense of necessity allows a "efendant to interfere with the property interests of an innocent party to avoid a greater in=ury. The =ustification for this lies in social policy. An action that is socially necessary is beneficial because the action minimiJes the overall loss. The necessity may be to protect a public interest or a private interest. @hat is self-defense under intentional tort lawO :ne may use self-defense to defend oneself from the commission an intentional tort. +owever, a victim may only respond with reasonable force. 4easonable force can be used where one reasonably believes that such force is necessary to protect oneself from immediate harm. The re,uirements are that !/ the threat must be immediate, #/ one must reasonably believe it is about to occur and %/ only reasonable proportional force is allowed. @hat are intentional torts to propertyO +umans are not the only parties who may be afflicted by intentional conduct of another that causes harm. 8and and property may be violated as well. 7iolations or in=uries against property as called trespasses. @hile these torts traditionally are not loo-ed upon as severely as harms to humans, one may still recover large amounts for damage or trespasses to valuable property. @hat is trespass to landO To show a trespass to land, a Plaintiff must show Plaintiff must s>o')

An invasion affecting an interest in the exclusive possession of his property An intentional doing of the act which results in the invasion Reasonable foresee ability that the act done could result in an invasion of possessory interest, AND Substantial harm to receive compensatory damages

5>at is Jtrespass to c>attelsKI

A trespass to chattels is the intentional interference with the right of possession of personal property. There must be actual damage to the property or a significant deprivation of use or dispossession. The "efendant's acts must !/ Intentionall. damage the chattel #/ "eprive the possessor of its use for a su&stantial period of time, :4 %/ Totall. dispossess the chattel from the victim. +owever, <ad faith is 0:T re,uired, and also, the Plaintiff "oes 0:T need to intend to interfere with the rights of others. @hat is a nuisance under intentional tort lawO 0uisance occurs when a "efendant creates an unreasonable interference with the use or enGo.ment of the owner or possessors property interest. This includes smo-e, offensive odors, noise or vibrations that materiall. interfere with the possessors ordinary comfort. There are different types, public and private. *u&lic Cuisance is an interference with a right common to the general public. This entails substantial interference with public health, safety, peace, comfort, convenience health haJards, maintenance of whore houses or casinos, obstruction of public streets. *rivate Cuisance is an unreasona&le interference with one's right to use and en=oy his property. A Plaintiff can sue :08> if he has an interest in t>e land current possessory or beneficial interest in property. The Plaintiff must show 9se and en=oyment of land was interfered with in a substantial way. The standard is according to person of normal sensitivit. in community. 5>at is an Jattractive nuisanceKI T>e Attractive Cuisance Doctrine is '>en an artificial condition where children are li-ely to trespass creates a temptation to people, often children. :ne must use ordinary care to protect others from harm. This is especially so when the nuisance involves unreasonable ris- of death or serious bodily in=ury and children would not appreciate the danger. $or e*ample, suppose a party maintains a pool, a sign is not enough one needs a gate around the pool to ensure that he or she does not invite trespassers to harm themselves. @hat is a tort of conversionO &onversion is an intentional interference with P's possession or ownership of property that is so su&stantial that " should be re,uired to pay the property's full value. This can occur when one has an 1ntentional e*ercise of dominion over chattel, the creates a serious interference with rights or owner or possessor, and it is =ustifiable to re,uire a "efendant to pay the full value of the chattel. StrongQThere are several @ays to commit conversion Ac,uiring possessionRS a "efendant ta-es possession of the property from the Plaintiff. +owever, A bona fide purchaser of stolen goods is a converter even if there is 0: way he could have -nown that they were stolen. Another method to perform conversion is by a Transfer to a 3rd person. "efendant transfers chattel to someone who is not entitled to it. Additionally one may convert chattels by 5it>>olding goods. This occurs when "efendant refuses to return goods to their owner for a substantial time. Dor F*ample "efendant, a par-ing garage, refuses to give P bac- her car for a day. $inally and most simply, Destruction. T>is occurs '>en a Defendant destroys goods or fundamentally alters them.

0egligent Torts What is a tort of negligence? The tort of negligence occurs when a "efendant has a duty of care and through his actions or inactions violates that duty of care. Through this violation of the established duty, the Plaintiff is in=ured or harmed. 0egligence differs from intentional torts in that it does not re,uire that the "efendant intentionally desire to harm the Plaintiff, all that must initially occur is a breach of a duty that the "efendant owed to the Plaintiff. 5>at are t>e elements of negligent tortsI Elements of a Tort Claim To recover for negligence P must establish each of the following elements by a preponderance of the evidence .by more than A3T/ !. Dut.) A legally recogniJed relationship between the parties' ,uestion of law #. Standard of Care) The re,uired level of e*pected conduct %. ;reac> of Dut.) This is the $ailure to meet the standard of care E. Cause+in+fact) The Plaintiff's harm must have the re,uired ne*us to the "efendant's breach of duty A. *roAimate Cause) There are no policy reasons to relieve the "efendant of liability ). "amages this is the re,uirements that the Plaintiff suffered a cogniJable in=ury What is standard of care in negligent tort cases? The S&andard o' Care is the level of conduct demanded of a person so as to avoid liability for negligence. The "efendant must act as a reasonably prudent person would under the same or similar circumstances. This is an :b=ective test. 1t compares "efendant's conduct to the e*ternal standard of a reasona&le prudent person.K This is 0:T strict liability, that is, it does not impose liability as a necessity, it holds it to an ob=ective standard to determine if the party is liable. What is malice? 1n some instances, an added element of 6A81&F must be met. To do so Plaintiff must prove that "efendant did something with actual malice. ,alice is Hnowledge that a statement was falseC or a 4ec-less disregard of whether it was true or false. 1n issues of malice, the Plaintiff must

show that "efendant in fact entertained serious doubts about the truth of the statement. +owever, a common issue for malice to consider is that Public figures have access to mass media to counter any defamatory statements. 1n the famous case of 0> times v. Sullivan, A false statement about the official conduct of public officials is defamatory if made wB actual malice. What is a duty of care? Dut. of Care) the "efendant has a legal dut. to protect t>e *laintiff against an unreasonable ris- of harm. "uty of care determined by

The extent to which the transaction was intended to affect Plaintiff The foreseeability of harm to the Plaintiff The degree of certainty that Plaintiff suffered in ury !loseness of connection between Defendant"s conduct and in uries suffered #oral blame attached to Defendant"s conduct Policy of preventing future harm

5>at is a &reac> of dut. of care in negligent tortsI *ut simpl., ;reac> of dut. is a DefendantLMs failure to meet the standard of care. This can be a $ailure to act as a reasonable person would have under the same or similar circumstances. The "etermination of unreasonableness considers the ris-s that should have been foreseen at t>e time of the "efendant's conduct not through hindsight after the harm occurred. The degree of care demanded is a result of % factors The li-elihood of in=ury I probability and The seriousness of in=ury I in=ury <alanced against The interest which he must sacrifice to avoid the ris-I burden. @hat is a breach causing harm in fact in negligent tortsO Proof of Breach: A method to demonstrate that something has cause harm in fact can be done by loo-ing at customs of the activity. A custom is a well-established and consistent way of performing a certain activity in a trade or industry. The Fvidence of standard of care .can be used by Plaintiff or the "efendant./ The Plaintiff will try to assert the Plaintiff's deviation from custom as evidence of lac- of due care. "efendant may try to avoid liability by showing compliance with custom. &ustom evidence does 0:T itself establish a breach of duty or demonstrate harm in fact. The Plaintiff must show that the harm in fact the custom was developed to avoid is the same as that suffered by Plaintiff. 5>at is proAimate causeI

Pro*imate cause is the demonstration that the harm or in=ury was not too remote and was directly foreseeable as a result of the "efendantRSs actions. &ause in fact is usually easier to prove than pro*imate cause. 1t is traditionally easier to show what physically cause the harm rather than to demonstrate that the in=ury was too remote or unforeseeable. Fven if Plaintiffs establish a cause+ in+fact, Plaintiffs cannot recover if the causal relationship between "efendantRSs conduct and PlaintiffRSs in=ury is too remote or unforeseeable. $:4FSFFA<181T> is whether "efendant should have foreseen, as a ris- of its conduct, the general conse,uences or type of harm suffered by Plaintiff. "efendant is liable only for those conse,uences of his negligence which were reasonably foreseeable at the time he acted. Also, as long as the type of harm is foreseeable the e*tent of harm does 0:T need to be. @hat is negligent emotional distressO This tort occurs when a party through his actions negligently creates a state of severe mental or emotional distress within another person. The Impact "ule stated at common law, a Plaintiff must suffer physical contact by "efendant's negligence to recover for mental distress. +owever a 610:41T> of =urisdictions affirm the Hone of Danger anal.sis. In t>e Hone of Danger anal.sis) modified to allow recovery for P in p>.sical 7one of danger who showed a p>.sical manifestation of emotional distress must be sufficiently severe to cause physical symptoms of the distress. $or e*ample, physical symptoms could include miscarriage, heart attac-, stomach trouble, loss of weight Also, a Plaintiff &an recover for near misses because the 4is- of physical impact included. A *laintiff does not have to suffer physical impact to recover for emotional distress if there is a definite and ob=ective physical in=ury produced as a result of the emotional distress. +owever, in special casesRScourts allow recovery for emotional distress li-e an Frroneous notification of a relativeRSs death, emotional harm due to negligent handling of a chattel with a lot of sentimental value or things of that nature. Strict lia&ilit. 5>at is strict lia&ilit.I Put simply, strict liability is 8iability without fault. A person will be held liable for damages for in=ury or loss even if e*ercised all possible care to prevent it. This is an incentive to prevent accidents by a greater e*ertion of care to reduce fre,uency of choosing high-ris- activities. These claims usually arise in three

Categories: Animals, Abnormally Dangerous Activities and products liability.

Ultra hazardous activities examples of strict liability Some e*amples of ultra haJardous activities include storage of e*plosives, fumigation, crop dusting, storage of flammable li,uids, pile-driving, maintenance of haJardous waste site, blasting, or transportation of e*plosive li,uids. @hat is product liabilityO

A product liability claim is 6oney damages from manufacturers and sellers of defective products that in=ure persons or property. Fvery Products 8iability case has % common elements A Defective *roduct, this can be due to "efective design, "efective manufacturing "efective warning. An InGur. and a Causal relations>ip &et'een t>e t'o. Claims ma. arise under t>ree different t>eories) 0egligence, <reach of @arranty Strict 8iability. @hat is vicarious liabilityO 7icarious liability claims arise when :ne person is liable for the conduct of another. 1t is essentially liability without direct fault. $irst a Plaintiff must establish special relationship. The most common relationship asserted is the Emplo.er+Emplo.ee "elations>ip. This in turn invokes the Respondeat superior doctrine Fmployer is liable for tortuous acts of his employees which are committed 'it>in t>e scope of emplo.ment and which cause in=uries or property damage to a %rd person. Additionally, Fmployers who have neither acted nor intended the action may be liable for their employee's negligence precautions ta-en have no effect. This is because Fmployers have a duty to the community must ta-e reasonable steps to prevent employee from harming others. The tort must occur within the Scope of employment. 1f tortfeasor was acting with an intent to furt>er >is emplo.er:s &usiness purpose even if the means he chose were indirect, unwise, or forbidden then the employer is liable. What is joint liability? <oint lia&ilit. most commonl. occurs under a <oint Enterprise. T>is effectivel. means t>at &ot> parties in t>e enterprise are lia&le for t>e end t>at t>e. are pursuing. 1n this relationship, Partners and those participating in temporary =oint enterprise are vicariousl. lia&le for torts committed &. eac> ot>er when acting in furtherance of the partnership. What are disclaimers and waivers? A disclaimer is a 'ritten or oral instruction t>at attempts to limit t>e lia&ilit. of t>e part. providing t>e service or product. Some eAamples include t>e Disclaimer of merc>anta&ilit.. Ender t>e ECC a Seller can disclaimBlimit the remedies available to the buyer. Additionally, a Seller may ma-e a written disclaimer of warranty. 1t 6ust be conspicuous bold print, capital letters. 1t 6ust specifically mention word merchantability. As is is another type of disclaimer. This basically tells consumers that no further warranties are provided. As-is does 0:T need to mention merchantability. ow enforceable are disclaimers and waivers? "isclaimers and waivers are not a panaceas to ensure that no one may sue the producer of the product. They may provide mere instructions to assist someone who is going to be using the product or to attempt to mitigate the fre,uency of in=ury. 1f the in=ury is particularly foreseeable

or the product is patently dangerous, it is unli-ely that a court will uphold a disclaimer or a waiver as a means of denying recovery to the wronged party. What is culpability in strict liability cases? &ulpability is the level of guilt or blameworthiness that can be attributed to the producer of the product. 6ere 1n=ury resulting from the use of the product is 0:T sufficient to impose liability upon seller. A Plaintiff 69ST show !/ Product was defective this is the <4FA&+ #/ 1tem was manufacturedBsold by " this is the duty "9T> that is, to put safe product on mar-et and finally that the %/ "efect was a cause of the in=uries factual and pro*imate this is the causation. Additionally, the Plaintiff must have been in=ured while using the product in a way it was intended to be used. A further problem that arises for a Plaintiff is proving that the "efect e*isted at the time product left "'s hands. Put another way, that the &onsumer did not substantially change product :4 put it to an abnormal use. Defamation What is the tort of defamation? "efined defamation is any statement that sub=ects a person to distrust, hatred or ridicule. This can be written, printed, online, spo-en, broadcast on radio or in a physical medium. The core of the tort is that someone's reputation has suffered due to information communicated by another. 5>at is li&elI 8ibel is the Publication of defamatory matter by 'ritten or printed 'ords. This is traditionally communicated by sig>t. /o'ever it also ma. &e communicated &. permanent eApression. Permanent e*pression includes photos, writing, statue, sculpture embodied in physical form. Plaintiff does 0:T need to prove special harm with libel cases. F*ceptions e*ist, a Plaintiff 69ST prove special damages if libel per ,uod e*trinsic facts are re,uired to establish defamatory meaning. <9T if libel falls into ! of E categories of slander per se Plaintiff does 0:T need to prove special damages 5>at is slanderI Slander is the publication of defamatory matter by spoBen 'ords, transitory gestures or by any form of communication other than those constituting libel. @ith slander, a Plaintiff must show that he suffered special .pecuniary/ harm. +owever an F*ception e*ists with Slander per se. These statements traditionally involve one being riddled with disease, an unscrupulous businessman or se*ual unscrupulous. These do not re,uire proving special damages.

What are the basic laws of defamation? !efamation re"uires#

"efamatory statement that is a false and defamatory statement of $A&T concerning him, Publication's communicating of that statement to a person other than the P .%rd party/ this includes Statement was seen or heard by someone other than P, "'s publication must have been

either intentional or negligent, Any repetition of a defamation is considered publication . also note that the Single publication rule's an entire edition of boo- or periodical constitutes a single publication. This is because Publishers held liable bBc have ability to control what is published #ndary publishers distributors, vendors, mere conduits 0:T liable bBc don't have -nowledge of defamation in publication and have no reason to be put on guard. >ou also need $ault on part of "efendant. This may be 0egligence when spea-ing about a private person or Actual malice for a public figure. And in some circumstances Special harm either special harm of a pecuniary nature .slander/ or the actionability of the statement despite the non-e*istence of such special harm 5>at are t>e common la' rules of defamationI The law is ,uite different now than it was in the days of Dustice <randeis. The common law largely favored allowing actions against those who would see- to degrade the reputation of another. $urthermore, the protections afforded today for public figures were far diminished as well. 9nder the common law, reputation was seen as far more valuable and easy to damage, so one would have to spea- and write with discretion. 5>at are t>e &asic issues in rig>t to privac.I The basic issues that are involved in the right to privacy are the reasonable e*pectation of a person in relation to their right to privacy. 1f a party violates a common level of decency and invades his or her privacy, they will li-ely be held liable. Privacy violations can range from public disclosure of a private fact, aggressive paparaJJi, or intrusion upon seclusion. 5>at is t>e Jre(uirement of faultKI The re,uirement of fault is that a person must have made an error in publishing the information. This standard of fault differs depending on the class of person who is spo-en about. Private figures are given more protection while public or political figures have a higher standard or fault. 5>at must I prove if I am t>e plaintiff in a defamation caseI P must prove that " made statement with actual malice. Plaintiff must have had Hnowledge that it was falseC or 4ec-less disregard of whether it was true or false. Plaintiff must show that " in fact entertained serious doubts about the truth of the statement. Additionally, Public figures have access to mass media to counter any defamatory statements. $or e*ample in 0> Times v. Sullivan P, commissioner in charge of Police dept., sued 0> Times for publishing a defamatory ad regarding police dept's treatment of blac- student's A false statement about the official conduct of public officials is defamatory if made wB actual malice @ith Private $igures a Plaintiff does not have to prove that " -new his statement was false or rec-lessly disregarded whether it was true or false. A Private figure &an recover for actual in=ury impairment of reputation and standing in the community, personal humiliation, mental anguish, suffering. The &ourt loo-s at content, form and conte*t of communication. +owever, a Plaintiff must prove that " made statement wB rec-less disregard :4 negligence 5>at is t>e procedure for suing for li&elI

5>at are matters of pu&lic interestI 6atters of public interest are matters that generally applicable to public interest or within the ambit of what the public would want to -now about. The courts have given this phrase wide latitude and nearly everything involving a public figure, aside from their e*tremely personal lives is public interest. 5>at is t>e legal definition of a&solute privilegeI 5it> A&solute *rivileges a " may escape liability even if he -new that the statement was false or published it in order to hurt P's reputation. The policy behind this is that people have the right to spea- their minds as long as statement occurs wBin conte*t of meeting and relates to mtg's sub=ect matter. $or e*ample in Dudicial proceedings Dudges, lawyers, parties and witnesses all privileged in what they say during course of =udicial proceedings. Also in 8egislative proceedings, 5ovt. officials' federal and high state officials, and +usband and wife. 5>at is t>e legal definition of (ualified privilegeI Qualified *rivileges are conditional privileges depending on the sub=ect matter or timing. Protecting communications made in connection wB the spea-er's moral, legal or social obligations re,uire correct or reasonable belief. $or e*ample, Protection of publisher's ."'s/ interests a "efendant is conditionally privileged to protect his own interests if they are sufficiently important and defamation is directly related to those interests. $or e*ample, 1f " reasonably believes that his property has been stolen by P he may tell the policeRSif "RSs belief is reasonable he is protected against a slander action by P even if he is wrong. Alternatively, a privilege is given for the 1nterest of others. A "efendant may act fo r the protection of the recipient of his statement or some other %rd party. $or F*ample an e*boss has the right to give info about his e*-employee to a new, prospective boss. $inally *u&lic Interest a "efendant may be privileged to act in the public interest. $or e*ample, A private citiJen's reasonable but mista-en accusation made to police that P committed a crime would be covered. Defamation Defenses What are the defenses to defamation? Some defenses to defamation include the T49T+ of the statement, privileges, both ,ualified and absolute and disproving actual malice. What is actual malice? @ith defamation actions a Plaintiff may be re,uired to prove actual malice was present when the statement was made. A may prove that " made statement with actual malice by demonstrating that the Hnowledge that it was falseC or 4ec-less disregard of whether it was true or false. 5enerally, a P must show that " in fact entertained serious doubts about the truth of the statement. 5>at must t>e victim prove to esta&lis> t>at defamation occurredI

+e must show that there was a publication and that this statement somehow harmed his reputation in a substantial way in the community. This may be done with circumstantial evidence, or by showing the physically representation of the statement in media.

5>. do pu&lic figures and officials >ave a >arder time proving defamationI The public interest lies in preserving the first amendment. The concept Public figures and officials should be open to criticism lies at the heart of the tenants of the first amendment. 5reater latitude is given to defame them additionally because they have inter=ected themselves into the public sphere and must therefore accept whatever conse,uences come with it. 5>o is a pu&lic officialI A public official can be a governmental figure or someone who has significant authority in the managerial aspects of the legislation. $or e*ample, a congressman could be a public official but a secretary to a senator would li-ely not be a public official. 5>o is a pu&lic figureI A public figure may either be a celebrity, person of public concern, or a private figure who has inter=ected him or herself into a public controversy willingly. 5>at legal arguments are availa&le to defendants in a li&el caseI "efendants may argue that the statement is simply a true statement. This is an absolute defense to defamation actions. Alternatively the "efendant could argue that the statements were made pursuant to an absolute ,ualification. $inally the 8ibel defendant could assert that the statement was made under a limited ,ualified privilege. 5>at are t>e common la' defenses against defamation casesI Some common law defense include truth or the involuntary nature of the statement at the time it was made due to duress or coercion. A common law defense that was traditionally invo-ed was the defense of P94F opinion. That is a statement that is not offering any truth but is presented solely as a commentary. Does t>e constitution offer an. protection for defamator. statementsI The constitution offers the ultimate protection for defamatory statements in the first amendment. 6any defamation laws have a difficult time providing substantial bite due to the wide latitude given to free speech in the first amendment. Additionally, some "efendants choose to countersue with S8APP suits, further adding a level of free speech protection. 5>at is defamation Jper seKI

Defamation *er Se are statements t>at do not re,uire proof of special damages. They can be classified into four categories for defamation Crime statements imputing morally culpable criminal behavior to P, 4oat>some disease statements alleging that P currently suffers from a venereal or other loathsome and communicable disease, ;usiness, profession, trade or office an allegation that adversely reflects on P's fitness to conduct her business, trade, profession or office, SeAual misconduct) statement imputing serious se*ual misconduct to P .refers to a woman's lac- of chastity/ Additionall. 4i&el *er Se eAists as 'ell. T>is is any publication which e*poses a person to distrust, hatred, contempt, ridicule, oblo,uy. +owever, you do 0:T need to prove actual damages presume such statement will cause damages to reputation of the average person 5>at is a li&el+proof plaintiffI 1f someone has a terrible reputation that is incapable of being further damaged, some courts deem these parties to be libel-proof. "efamation laws allow people to sue for statements that damage their reputations and e*pose them to hatred, ridicule or contempt. +owever, some courts have ruled people can have such poor reputations they cannot sue for libel. &ourts have contended that because the best result these libel-proof plaintiffs could obtain would be nominal-damage =udgments. 5>at does it mean '>en a defamator. statement 'as pu&lis>ed to a t>ird personI *u&lication is a communication of a statement to a person other than the Plaintiff .%rd party./ Also, it can be that Statement was seen or heard by someone other than P. The "efendant's publication must have been either intentional or negligent. Any repetition of a defamation is considered publication as well. /o'ever, Single pu&lication rule) an entire edition of boo- or periodical constitutes a single publication. Publishers are held liable bBc have ability to control what is published. #ndary publishers, distributors, venders, mere conduits 0:T liable bBc don't have -nowledge of defamation in publication and have no reason to be put on guard. 5>at are some practical met>ods of reducing lia&ilit. for defamationI Some simple practical methods for reducing e*posure to libel and defamation cases would be to attempt to ensure the truth of all statements that are made when published to a large public. Alternatively, if it is a commentary, ma-e sure to designate that statements as opinions. 5>at is due diligenceI "ue diligence means e*pending a reasonable amount of effort to ensure that the information presented is true. This is not an e*haustive or overly demanding standard, it merely entails performing a good faith effort to ensure that the information that is presented is true and not rec-lessly publishing false information.

Breach of Contract
5>at is a contractI

A contract is an agreement between two or more persons .individuals, businesses, organiJations or government agencies/ to do, or to refrain from doing, a particular thing in e*change for something of value. &ontracts generally can be written, using formal or informal terms, or entirely verbal.

@hat is a breach of contractO

&reac> of contract. 7iolation of a contractual obligation by failing to perform one's own promise, by repudiating it, or by interfering with another party's performance. A breach may be one by non-performance, or by repudiation, or by both. Fvery breach gives rise to a claim for damages, and may give rise to other remedies. Fven if the in=ured party sustains no pecuniary loss or is unable to show such loss with sufficient certainty, he has at least a claim for nominal damages. 1f a court chooses to ignore a trifling departure, there is no breach and no claim arises.

What is a breach of confidence?

<reach of confidence is a common law tort. This usually involved one party conveying some information that was provided in confidence and then later disclosed to unprivileged parties. 9sually this re,u ired that the disclosing party disclosed the information to the detriment of a confiding party. 5>at is a &reac> of promiseI A breach of promise is an anti,uated tort that is no longer used in modern legal systems. 1t was commonly used in engagement contracts between a man and a woman. A promise to marry was a form of a ,uasi-legal contract. 1f a man were to repudiate his promise to marry it would be viewed as a form of constructive breach 5>at is fraudI $raud is defined to be an intentional perversion of truth or a false misrepresentation of a matter of fact which induces another person to part with some valuable thing belonging to him or to surrender a legal right. $raud is usually ma-ing a material misstatement that another person relies upon to their detirment. The hardest part of proving fraud is proving the re,uired element of RSscienter.RS Scienter is proving that the person had -nowledge of the falsity when he made the statement. $raud may be actionable both criminally and civilly.

@hat is duressO
"uress is a potential defense to a breach of contract. This is usually seen as a type of an e*cuse for invalidating the contract from its inception. <lac-s law dictionary defines duress as any unlawful threat of coercion used to induce another to act or not act in a manner they otherwise would

What is impossibility of performance?

1mpossibility of performance if a party is entirely incapable of performing his or her part of the contract due to e*traneous forces beyond his or her control. This is often used as a means to attempt to mitigate the damages in a breach, or as an attempt to withdraw from the contract.

What is commercial frustration?

&ommercial frustration is an unforeseen uncontrollable event which occurs after a written or oral contract is entered into between parties, and ma-es it impossible for one of the parties to fulfill hisBher duties under the contract. This is similar to impossibility of performance e*cept that it usually occurs within the business conte*t.

Defenses in Civil Claims

5>at is J2olenti on 3it 4n5uriaJI volenti non fit inGuria is 8aw 8atin to a willing person it is not wrong, i.e., a person is not wronged by that to which he or she consents. The principle is that a person who -nowingly and voluntarily ris-s danger cannot recover for any resulting in=ury. 5>at is voluntar. assumption of risBI Assumption of "isB is a defense in tort la'. It is t>e principle t>at t>e *laintiff assumed the ris- based on showing that he -now the danger, understood the ris- involved and chose to encounter it voluntarily. Accordingly, if the court finds that this is so, they may reduce the Plaintiff's damages or simple dismiss the claim. 5>at is contri&utor. negligenceI Contri&utor. Cegligence is t>e concept t>at a *laintiff who is negligent and whose negligence contributes pro*imately to his in=uries is totally barred from recovery. This concept is an all or nothing meaning that if a Plaintiff is !T negligent cannot recover anything. T>is doctrine Fncourages forum shopping. Some Gurisdictions em&race t>e 4ast Clear C>ance limit on this defense. T>is is t>e concept t>at 1f =ust before the accident, " had an opportunity to prevent the harm, and P did not have such an opportunity " becomes liable Dor eAample, P crossed street without loo-ing. " saw P and tried to avoid hitting him but stepped on the gas instead of the bra-es. "'s discovery of the danger gave him a last clear chance to avoid the accident which he failed to ta-e advantage of. This last clear chance wipes out the effect of P's contributory negligence P can recover against ".

@hat is a civil actionO

A civil action is usually referred to in the collo,uy suing someone. 1t is traditionally, going in front of a =udge or a magistrate and see-ing some -ind of remedy or damages for someone who has wronged you.

What does it mean to $settle out of court%?

Settling out of court means that you have chosen to accept a sum or action in e*change for signing an agreement to dismiss the claim and never bring it bac- to court. Some settlements may occur on the courthouse steps or even during the course of trial, however, there are far less li-ely.

What is small claims court?

A small claims court in many =urisdictions is a court that handles matters where the sums involved are less than UA333. These courts are traditionally slower and less formal than the unlimited =urisdiction courts. People are free to represent themselves without a lawyer in these courts and, given the amount that is usually at sta-e, the parties usually do not retain counsel.

Who can start a civil action?

Any citiJen of the state may file a civil action in the state that they reside in. Paying ta*es in a given state ma-es them able to avail themselves of the benefits that court may provide. 1f the wrong occurred outside of the state, it may be more difficult to file a civil action where one lives.

@hat if a civil action is started against meO

1f a civil action is started against you, you should determine whether or not you can represent yourself. The first thing you should as- is @hat is this person see-ingO if the case is going to involve complicated legal matters or a large sum of money, it is usually advisable to retain counsel for a matter of such import. 1f the issues are small or insignificant, one may decide to proceed by representing his or her self.

ow do & defend myself

There is a bromide that one who defends himself has a fool for a lawyer, however this is not always the case when legal matters are simple or can best be handled by he who was affected by the controversy. To defend yourself you effectively choose to respond to all letters personally and show up in court by yourself and will bear the burden of all matters involved in litigation including but not limited to filing a complaint with the court, performing discover, deposing witnesses, and developing legal arguments.

ow do & defend myself if & am sued for nuisance?

>ou would first want to argue that whatever harm you are creating is not substantial or that it has not produced a long lasting effect. 0e*t you should attempt to show that your activity has not created an unreasonable interference with the right to use and en=oy the property. $inally, you could attempt to show that the party &A6F to the nuisance, that is, they were aware of the nuisance and still chose to come to it and beat its effects. /o' do I defend m.self if I am sued for defamationI

The first step in a defamation case should be to attempt to prove that the statement that was made is true, Truth is an absolute defense to defamation claims. 0e*t, one should attempt to disprove that absolute malice was used if the statement involves a public figure or a public official. $inally you would want to loo- into any possible privileges, whether it be ,ualified or absolute to =ustify the statement.

1f a plaintiff is awarded compensation, how is the amount decidedO

Damages can &e computed on a variet. of factors, one t.pe is computing damages to compensate for a previous 'rong. T>ese are called compensator.. 9nder compensatory, a Plaintiff &an recover if harm has already occurred, however Plaintiff cannot recover for continuing damages must bring successive actions for subse,uent harm. :ther times a Plaintiff will be awarded damages for a "iminished value of property. The damages are calculated using the "epreciation of property and diminished value of use of property. Alternatively, courts may as-, 1f nuisance won't go away, how much has the value of the property been decreased permanentlyO $inally courts may award damages for medical bills, pain and suffering, or punitive damages to prevent that conduct from occurring.

&an decisions be appealedO

"ecisions may be appealed if a party is unsatisfied with a lower court's decision. +owever, this process may be costly and may not generate the desired results. Parties should really consider why it was they lost in the trial court before they hastily attempt to appeal the decision because investing a large amount of time and money for a similar result would be wasteful to the parties and the =udicial system itself.

'an & be held responsible for my children(s actions?

>our children, by operation of the law, are seen effectively by the law as your property. Their actions will be imputed to you if repayment is demanded. 1n the case of torts that they commit, some =urisdictions re,uire that you be aware of have constructive -nowledge of your child's propensity for performing that tort before you are held strictly liable for his or her actions.

ow can & protect myself against a civil action?

Several devices may be used to shield yourself from liability for civil actions. Some familiar ones may include using a disclaimer when selling an item or providing a service. 0otifications and signs disclaiming services or implied warranties can serve to limit liability and mitigate legal arguments should a Plaintiff decide to sue you.

Damages in Civil Claims

5>at are nominal damagesI

0ominal damages are e*actly what they sound li-e in name only. These type of damages are typically a very small amount that the court or =ury may award to a party that, while successful, they feel for whatever reason does not deserve large damages. This may be because they felt that one party e*ercised bad faith or simply because they felt that no real harm occurred.

What are punitive damages?

Punitive damages or sometimes referred to as e*emplary damages are damages that are awarded by the discretion of the court for particularly egregious activity. The purpose of these damages is to discourage further conduct by the violating party. $or e*ample, if repaying a customer for fraud was the only damage available, business could build it into their e*penses to brea- the law, punitive damages could award up to nine times the damages to teach the company a lesson. 5>at are compensator. damagesI Damages can &e computed on a variet. of factors, one t.pe is computing damages to compensate for a previous 'rong. T>ese are called compensator.. 9nder compensatory, a Plaintiff &an recover if harm has already occurred, however Plaintiff cannot recover for continuing damagesRSmust bring successive actions for subse,uent harm.

What are penal damages?

Penal damages can be ultimately be understood as e*cessive contracted for damages in a contract. A good way to thin- of a penal damage is an e*cessive or aggressive li,uidated damages clause. These damages are often seen as in &error(m and will not be enforced by the courts. These types of damages not only see- to redress, they see- to build in punitive damages into the contract to disincentiviJe breach. They do this by assigning penalties that are far more than the party that suffers the breach will suffer.

@hat are general damagesO

5eneral damages traditionally cannot be calculated with certainty. Pain and suffering, emotional distress or 0:0-economic losses are e*amples of general damages. Parties usually assert that the parties see- a recovery for a loss that is not specialiJed in any manner and that the party has been wronged for of a general sum. 9sually general damages only see- recovery to the e*tent that the court will allow.

What are special damages?

Special damages are damages that can be ob=ectively measured. These damages are usually calculated with certainty. Some e*amples include, out of poc-et, lost wages, medical bills, etc.

What are conse"uential damages?

&onse,uential damages are one -ind of damages that can be awarded in a case for an agreement where one party feels that the other side of obligations were not entirely fulfilled. &onse,uential

damages .also sometimes referred to as indirect or RSspecialRS damages/, include loss of product and loss of profit or revenue and may be recovered if it is determined such damages were reasonably foreseeable or within the contemplation of the parties at the time of the contract. 5>at are li(uidated damagesI 8i,uidated damages are usually created by contract. 8i,uidate damages accelerate the amount of damages that a party will foreseeably incur and then provide that the breaching party will pay that amount in the event of breach. Do most cases go to trial to recover damagesI &ontrary to what television would have you believe, only appro*imately ;T of cases see-ing damages go to trial. 6ost cases are settled in the pre-trial litigation phases. Ta-ing a case to trial is e*pensive and usually only occurs between e*tremely contentious opponents, it is usually more economically efficient for both parties to settle out of trial. 5>at is Jpain and sufferingKI *ain F Suffering can include damages for physical and emotional distress. /o'ever, t>ese damages can only testify to the past. 1n some instances, the Plaintiff can use actuarial ta&les to show what his life e*pectancy is must be compensated for that many years of pain and suffering. Additionall. a *laintiff ma. recover for 4oss of enGo.ment of life t>at is, loss of en=oyment of activities the in=ury prevents the victim from pursuing. 7ictims cannot recover if they are unconscious not aware of or distressed by loss of en=oyment. Additionally, must be conscious for an appreciable period of time before death to recover

What is subrogation?
Subrogation is the substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor. $or e*ample, a surety who has paid a debt is, by subrogation, entitled to any security for the debt held by the creditor and the benefit of any =udgment the creditor has against the debtor, and may proceed against the debtor as the creditor would. 5>at does Jpreponderance of t>e evidenceK meanI This is the standard of proof used in civil cases. This standard basically as-s that a =udge or =ury find that it is more li-ely than not that what the Plaintiff is asserting is true and this it is more than A3T li-ely that he or she is entitled to damages. /o' does a prior inGur. affect t>e value of m. claimI Prior in=uries or pre-e*isting ailments may affect the amount of recovery that is awarded. Ailments may offset the amount that is awarded and result in a lower pay off than a full healthy person would have received. 1f a plaintiff previously had a bro-en arm and got in a car crash, and e*ited with a bro-en arm, it is unli-ely that a court would award him full damages for a bro-en arm that he previous was already afflicted with.

5>at is included in a &odil. inGur. claim settlementI A bodily in=ury claim settlement may include many elements but some common damages include medical bills, future damages, pain and suffering, loss of wages, loss of consortium and loss of en=oyment.

Wrongful Death What is wrongful death? Personal Injury Settlements

Is t>ere a minimum personal inGur. settlement amountI 0o, there is no minimum amount that a person may receive when they have been personally in=ured. The settlement amount is determined by a variety of factors including the medical bills, the future damages, the e*tent of harm, the loss in wages and the loss in future earnings. Are medical &ills included in a &odil. inGur. a'ardI <odily in=ury claims and RSpersonal in=ury claimsRS and RSP1 awardsRS are usually used synonymously. 6edical bills are often aggregated into the settlement amount with the lost earnings, the loss of consortion if appropriate and any other incidental e*penses li-e purchasing wheel chair accessible vehicles, etc. &hances are if you settle your personal in=ury claim, your settlement may include all or only one of these -inds of damages. 1t is usually a good idea to attempt to determine what recovery is provided for what in the interest of ta* reasons, repayment, and determining the rights to recovery on other e*penses incurred. Can I asB m. la'.er for a cop. of m. settlement c>ecBI >our lawyer is your agent and is an employee and accordingly, you certainly can as- that he show you a copy of the settlement chec-. >our lawyer owes you fiduciary duties to disclose amounts that you have been awarded. Additionally, the insurance company will usually ma-e the chec- out to you and your attorney as cosigners, so not only are you allowed to see the chec-, but your attorney will li-ely have to get you to sign it before it may be cashed. 1t would also be a good idea to as- for a copy of F7F4> chec- written by the insurance company to your lawyer to determine if the full amount has been paid. The sum of all of the chec-s should total the final settlement amount, if not you may have grounds for bringing a claim against your lawyer for malpractice. 5>at is a proper personal attorne. contingenc. feeI

Personal attorney contingency fees can vary determining on the s-ill and ability of the lawyer that you retain. :ften times more complicated cases will demand higher percentages as an incentive for a lawyer to ta-e them. 9nder &A law, a lawyer cannot charge more than E3T of the contingency as his fee, otherwise he will be sub=ect to the <A4 for a violation of fiduciary duties and you may have a claim against him for malpractice. +owever all fee agreements are negotiable so do you best to lower your percentage before you sign your lawyer on to your case. 1f it is relatively simple case with no complicated legal issues, you may be able to find a lawyer to ta-e for anywhere around %% and !B%T of your settlement. 1n large settlements, that ) and #B%T can mean all the differenceV Can m. la'.er settle m. personal inGur. case 'it>out m. consentI Traditionally lawyers owe their clients a fiduciary duty and a duty of full disclosure, so this would li-ely not occur however, some attorney write this power in as a term of their fee agreement. 1f you find that your attorney has attempted to

TortsWW Kuasi-delict !. An act or omission constituting fault or negligenceC #. "amage caused by the said act or omission %. The causal relation between the damage and the act or omission &riminal negligence !. The offender does or fails to do an actC #. The doing or thr failure to do that act is voluntaryC %. 1t be without malice E. 6aterial damage results from the rec-less imprudence A. There is ine*cusable lac- of precaution on the part of the offender, ta-ing into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place. 0egligence - omission of that degree of diligence which is re,uired by the nature of the obligation and corresponding to the circumstances of persons, time and place .art. !!(E/ !icar& test - did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situationO $oreseeability - could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursuedO Fmergency rule - one who suddenly finds himself in a place of danger and is re,uired to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subse,uently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.

@hen a person holds himself out as being competent to do things re,uiring professional s-ills, he will be held liable for negligence if he fails to e*hibit the care and s-ill of one ordinarily s-illed in the particular wor- which he attempted to do. <ases for holding insane person liable !. @here one of two persons must suffer a loss it should be borne by the one who occasioned itC #. To induce those interested in the estate of the insane person to restrain and control himC %. The fear that an insanity defense would lead to false claims of insanity to avoid liability Statute or ordinance becomes standard of care or conduct to which the reasonably prudent person is held. Acts the performance of which has not proved destructive or in=urious and which have, therefore, been ac,uiesced in by society for so long a time that they have ripened into custom, can not be held to be themselves unreasonable or imprudent. .p. !%3/ 5ross negligence - want of even slight care and diligenceC implying conscious indifference to conse,uences Plaintiff who was damaged has the burden of proving negligence of defendant. Presumptions - if violated traffic regulation or rec-less driver within the ne*t preceding two monthsC if at the time of mishap person was violating any traffic regulationC if death or in=ury results from his possession of dangerous weapons or substances 4es ipsa lo,uitur !. The accident is a -ind which ordinarily does not occur in the absence of someoneXs negligence #. &aused by an instrumentality within the e*clusive control of the defendant or defendantsC %. Possibility of contributing conduct which would ma-e the plaintiff responsible is eliminated 4ationale the very nature of certain types of occurences may =ustify an inference of negligence on the part of the person who controls the instrumentality causing the in=ury in the absence of some e*planation by the defendant who is charged with negligence Third re,uisite applies only to non-contractual tort since obviously the presumption of negligence immediately attaches by a failure of the covenant or its tenor. <ut res ipsa lo,uitur applicable to both contractual and non-contractual relations. :ne who was hurt while trying to rescue another who was in=ured through negligence may recover damages. &onduct which might otherwise be contributory negligence may not be so considered where a person is in=ured in attempting to save others from imminent danger of personal in=ury or death. 8icensee - one who enters anotherXs premises either without invitation or purposes not connected with business conducted on the premises but with permission or tolerance. 1nvitee - one who is at a place upon invitation Attractive nuisance doctrine - an owner is liable if he maintains in his premises dangerous instrumentalities or appliances of a character li-ely to lure children in play and he fails to

e*ercise ordinary care to prevent children of tender age from playing therewith or resorting thereto. WWYF*tracted from Timoteo A,uino, Torts and "amages #nd Fd. .#33A/Z A460