Torts & Damages

3A Atty. Calleja

TORTS AND DAMAGES Art. 1161.

SY 2018 Civil obligations arising from criminal offenses
shall be governed by the penal laws,
I. Introduction subject to the provisions of Article 2177, and
of the pertinent provisions of Chapter 2,
Art. 1156. Preliminary Title, on Human Relations, and
An obligation is of Title XVIII of this Book, regulating damages. (1092a)
a juridical necessity
to give, Art. 1162.
to do or Obligations derived from quasi-delicts shall be governed
not to do. (n) by the provisions of Chapter 2, Title XVII of this Book, and
by special laws. (1093a)
Art. 1157.
Obligations arise from: 1. Classes of Torts

(1) Law;
 - A tort consists in the violation of a right given or omission of a statutory
(2) Contracts;
 duty imposed by law.
(3) Quasi-contracts;
 - A tort is a wrong, a tortuous act which has been defined as the
(4) Acts or omissions punished by law; and
 commission or omission of an act by one without right whereby another
(5) Quasi-delicts. (1089a) receives some injury, directly or indirectly, in person, property or
reputation
Art. 1158.
Obligations derived from law 2. Damage and Damages: Distinctions
are not presumed.
Only those expressly determined There is significant distinction between in the context of Book IV, Title
in this Code or XVIII, the Civil Code on Damages, between the terms “damage” and
in special laws “damages”
are demandable, and
shall be regulated by the precepts of the law - Damage pertains to the actionable loss, hurt, or harm which results from
which establishes them; and the unlawful act, omission, or negligence of another
as to what has not been foreseen, - On the other hand, damages refer to the sum of money which law awards
by the provisions of this Book. (1090) or imposes as pecuniary compensation, recompense, or satisfaction for an
injury done or a wrong sustained as a consequence of either a breach of
Art. 1159. contractual obligation or tortious or illegal act. In fine, damages are the
Obligations arising from contracts amounts recoverable or that which can be awarded for the damage done
have the force of law between the contracting parties and or sustained.
should be complied with in good faith. (1091a) - Thus, there can be damage without injury in those situations in which the
loss or harm was not the result of a violation of a legal duty. These
Art. 1160. situations are often called damnum absque injuria. The law affords no
Obligations derived from quasi-contracts remedy for damage resulting from an act which does not amount to a
shall be subject to the provisions of legal injury or wrong.
Chapter 1, Title XVII, of this Book. (n)

Page 1! of 15
!
Torts & Damages
3A Atty. Calleja
3. Culpa Aquiliana/Contractual/Criminal: Distinctions
In order to recover damages based on culpa acquiliana and not on culpa
contractual, it is necessary to prove fault or negligence on the part of the
carrier. To recover damages based on culpa contractual, it is sufficient to
prove that there was a contract and that the obligation resulting therefore
was violated or not complied with.
Negligence incident to the performance of a contractual obligation (culpa
contractual) is entirely distinct from negligence considered as independent
source of liability in the absence special relation (culpa acquiliana). The
liability incident to the performance of contractual obligations is governed
by articles 1101 et. seq. and other special provisions, relative to contractual
obligations. The latter kind of negligence, falling under culpa aquiliana is
governed by articles 1902-1904 of the Civil Code.
- A pre-existing contractual relation between the parties does not preclude
the existence of a culpa acquiliana.
- Basis of culpa contractual: “Those who in the performance of their
obligations are guilty of fraud, negligence, delay, and those who in any
manner contravene the tenor thereof, are liable for damages.”
- Injury is the legal invasion of a right. Damage is the loss, hurt or harm
which results from the injury. Damages are the recompense or
compensation awarded for the damage suffered.
- In culpa contractual, once the plaintiff proves a breach of contract , there
is a presumption that the defendant was at fault or negligent. The
burden is on the defendant to prove that he was not at fault or negligent.
In contrast, in culpa acquiliana, the plaintiff has the burden of proving
that the defendant was negligent. The defense of exercising diligence in
the selection and supervision of employees is not a complete defense in
culpa contractual, unlike in culpa acquiliana.
II. Quasi-Delicts
Art. 2176.
Whoever by act or omission
causes damage to another,
there being fault or negligence,
is obliged to pay for the damage done.
Such fault or negligence,
if there is no pre-existing contractual relation between the parties,
is called a quasi-delict and
is governed by the provisions of this Chapter. (1902a)
Page 2! of 15
1. Elements
Elements of a cause of action
1. A right in favour of the plaintiff by whatever means and under whatever
law it arises or is created.
2. An obligation on the part of the named defendant to respect and not to
violate such right.
3. An act or omission on the part of such defendant violative of the right
of the plaintiff or constituting a breach of the obligation of defendant to
the plaintiff for which the latter may maintain action for recovery of
damages
Requisites for a claim of damages based on quasi-delict:
1. Damage suffered by plaintiff
2. Fault or negligence of the defendant
3. Connection of cause and effect between the fault or negligence of the
defendant and the damage incurred by the plaintiff
2. No Double Recovery Rule
Art. 2177.
Responsibility for fault or negligence under the preceding article
is entirely separate and distinct from the civil liability
arising from negligence under the Penal Code.
But the plaintiff cannot recover damages twice
for the same act or omission of the defendant. (n)
Well-settled is the rule that the same act or omission can create two kinds
of liability on the part of the offender, that is, civil liability ex delicto and
civil liability ex quasi delicto. Since the same negligence can give rise
either to a delict or crime or to a quasi-delict or tort, either of these two
types of civil liability may be enforced against the culprit. However, this is
subject to the caveat under Article 2177 of the Civil Code that the offended
party cannot recover damages under both types of liability.
The civil liability sought to be recovered through the application of Article
29 is no longer that based on or arising from the criminal offense. There is
persuasive logic in the view that, under such circumstances, the acquittal of
the accused foreclosed the civil liability based on Article 100 of the
Revised Penal Code which presupposes the existence of criminal liability
or requires a conviction of the offense charged. Divested of its penal element
by such acquittal, the causative act or omission becomes in effect a quasi-
!
Torts & Damages
3A Atty. Calleja
delict, hence only a civil action based thereon may be instituted or
prosecuted thereafter, which action can be proved by mere preponderance
of evidence. Complementary to such considerations, Article 29 enunciates
the rule, as already stated, that a civil action for damages is not precluded by
an acquittal on reasonable doubt for the same criminal act or omission.
Under our law, an act or omission, extra-contractual in nature, causing
damage to another, there being fault or negligence can create two separate
civil liabilities on the part of the offender, i.e., civil liability ex delicto and
civil liability ex quasi delicto. Either one of these two possible liabilities
may be sought to be enforced against the offender subject, however, to
the caveat under Article 2177 of the Civil Code that the offended party
cannot "recover damages twice for the same act or omission" or under both
causes. Outside of this proscription, the two civil liabilities are distinct and
independent of each other; thus, and conversely against the rule on double
recovery, the failure of recovery in one will not necessarily preclude
recovery in the other.
III. Negligence
Art. 1173.
The fault or negligence of the obligor
consists in the omission of that diligence
which is required by the nature of the obligation and
corresponds with the circumstances
of the persons,
of the time and
of the place.
When negligence shows bad faith,
the provisions of Articles 1171 and 2201, paragraph 2, shall apply.
If the law or contract does not state
the diligence which is to be observed in the performance,
that which is expected of a good father of a family
shall be required. (1104a)
1. Concept of Negligence
The test for determining whether a person is negligent in doing an act which
would result in injury or damage to the person or property of another is
whether a prudent man, in the position of the person to whom
negligence is attributed, may foresee harm to the person injured as a
Page 3! of 15
reasonable consequence of the course about to be pursued. If so, the law
imposes a duty on the actor to refrain from that course or to take precaution
against its mischievous results. Failure to do so constitute negligence.
Reasonable foresight of harm, followed by the ignorance of the admonition
born of this provision, is the constitutive act in negligence.
Negligence is defined as “the omission to do something which a reasonable
man guided upon these considerations which ordinarily regulate the conduct
of human affairs would do, or the doing of such which a prudent and
reasonable man could not to.” State otherwise, negligence is want of care
required by the circumstances. Negligence therefore is a relative or
comparative concept. Its application depends upon the situation the parties
are in and the degree of care and vigilance which the prevailing
circumstances reasonably require. Conformably, the diligence which the law
requires an individual to observe and exercise varies according to the nature
of the situation in which he happens to be and the importance of the act
which he has to perform.
2. Negligence as Proximate Cause
That cause, which,
in natural and continuous sequence,
unbroken by any sufficient intervening cause,
produces the injury and
without which the result would not have occurred.
More comprehensively, the proximate legal cause is that acting first and
introducing the injury, either immediately or by setting other events in
motion, all constituting a natural and continuous chain of events, each
having a close causal connection with its immediate predecessor. The final
even in the chain immediately effecting the injury as a natural and probable
result the cause which first acted and under such circumstances that the
person responsible for the first event should, as an ordinarily prudent and
intelligent person, have reasonable ground to expect at the moment of his act
or default that an injury to some person might probably result therefrom.
An injury or damage is proximately caused by an act o failure to act,
whenever it appears from the evidence in the case, that the act or omission
played aa substantial part in bringing about or actually causing the injury or
damage and that the injury or damage was either a direct result or a
reasonably probable consequence of the act or omission. It is the dominant,
moving or producing cause.
!
Torts & Damages
3A Atty. Calleja
To be entitled to damages for an injury resulting form the negligence of
another, a claimant must establish the relation between the omission and the
damage. he must prove under the Article 2179 of the New Civil Code that
the defendant’s negligence was the immediate and proximate cause his
injury. Proximate cause has been defined as that cause, which, in the natural
and continuous sequence of events, unbroken any any efficient and
intervening cause, produces the injury, and without which the result would
not have occurred. Proof of such relation of cause and effect is not an
arduous one of the claimant did not in any way contribute to the negligence
of the defendant.
3. Proof of Negligence
A person claiming damages for the negligence of another has the burden of
proving the existence of such fault or negligence causative thereof. The facts
constitutive of negligence must be affirmatively established by competent
evidence. Whosoever relies on negligence for his cause of action has the
burden in the first instance of proving the existence of the same if contested,
otherwise his action must fail.
In awarding moral damages for breach of contract of carriage, the breach
must be wanton and deliberately injurious or the one responsible acted
fraudulently or in bad faith. Liability for damages is limited to the natural
and probable consequences of the breach of the obligation, which the parties
had foreseen or could have reasonably foreseen. In that case, such liability
does not include moral and exemplary damages.
4. Presumption of Negligence
A. Res Ipsa Loquitur
The doctrine of res ipsa loquitur is stated thus:
Where the thing which causes injury
is shown to be under the management of the defendant, and
the accident is such as in the ordinary course of things
does not happen
if those who have the management use proper care,
it affords reasonable evidence,
in the absence of an explanation by the defendant,
that the accident arose from want of care.
Page 4! of 15
- The thing speaks for itself.
- Rebuttable presumption or inference that defendant was negligent, which
arises upon proof that the instrumentality causing injury was in
defendant’s exclusive control and that the accident was one which
ordinarily does not happen in the absence of negligence.
- Rule of evidence whereby negligence of the alleged wrongdoer may be
inferred from the mere fact that the accident happened provided the
character of the accident and circumstances attending it lead reasonably to
the belief that in the absence of negligence it would not have occurred and
that the thing which caused injury is shown to have been under
management and control of the alleged wrongdoer.
- The happening of an injury permits an inference of negligence where the
plaintiff produces substantial evidence that the injury was caused by an
agency or instrumentality under the exclusive control and management of
defendant, and that the occurrence was such that in the ordinary course of
things would not have happened if reasonable care had been used.
Requisites
1. Accident is of a kind which ordinarily does not occur in the absence of
someone’s negligence;
2. It is caused by an instrumentality within the exclusive control of the
defendant/s
3. The possibility of contributing conduct which would make the plaintiff
responsible is eliminated.
B. Respondeat Superior
Art. 1755.
A common carrier
is bound to carry the passengers safely
as far as human care and foresight can provide,
using the utmost diligence of very cautious persons,
with a due regard for all the circumstances.
Art. 1756.
In case of death of or injuries to passengers,
common carriers are presumed
to have been at fault or
to have acted negligently,
unless they prove that they observed
extraordinary diligence
as prescribed in Articles 1733 and 1755.
!
Torts & Damages
3A Atty. Calleja

employees chosen to be competent and qualified inasmuch as the employer

Art. 2180. is still required to exercise due diligence in supervising its employees.
The obligation imposed by Article 2176 is demandable
not only for one's own acts or omissions, Due Diligence in supervision requires the formulation of rules for the
but also for those of persons for whom one is responsible. guidance of employees and the issuance of proper instruction as well as
actual implementation and monitoring consistent of consistent compliance
XXX with the rules.

Employers shall be liable for the damages Once negligence on the part of the employees is shown, the burden of
caused by their employees and household helpers proving that he observed the diligence in the election and supervision of its
acting within the scope of their assigned tasks, employees shifts to the employer. So also, petitioner cannot escape any
even though the former are not engaged liability on the basis of respondent’s failure to allege in its complaint that the
in any business or industry. former did not exercise due diligence in the selection and supervision of its
employees.
XXX
It is not necessary to state that petitioner was negligent in the supervision or
The responsibility treated of in this article shall cease selection of its employees, inasmuch as its negligence is presumed by
when the persons herein mentioned prove operation of law. Allegations of negligence against the employer-employee
that they observed all the diligence of relation in the complaint are enough to make out a case of quasi-delict under
a good father of a family to prevent damage. (1903a) Article 2180 of the Civil Code.

Under article 2180 of the Civil Code, an employer may be held solidarily C. Violation of Traffic Rules
liable for the negligent acts of his employees. The obligation imposed in
Article 2176 is demandable not only for one’s own acts or omissions, but Art. 2184.
also for those of a persons for whom one is responsible. Employers shall be In motor vehicle mishaps,
liable for damage cause by their employees and household helpers acting the owner is solidarily liable with his driver,
within the scope of their assigned tasks, even though the former are not if the former, who was in the vehicle,
engaged in any business or industry. could have, by the use of the due diligence,
prevented the misfortune.
The responsibility treated in this article shall cease when the person herein It is disputably presumed that a driver was negligent,
mentioned prove that they observed all the diligence of a good father of a if he had been found guilty of reckless driving or
family to prevent damage. Whenever an employee’s negligence causes violating traffic regulations
damage or injury to another, there instantly arises a presumption juris at least twice within the next preceding two months.
tantrum that the employer failed to exercise diligentissimi patris familiias in
the selection (culpa in eligiendo) or supervision (culpa in vigilando) of its If the owner was not in the motor vehicle,
employees. To avoid liability or quasi-delict commuted by his employee, an the provisions of Article 2180 are applicable. (n)
employer must overcome the presumption by presenting convincing proof
that he exercised the care and diligence of a good father of a family in the Art. 2185. Unless there is proof to the contrary,
selection and supervision of his employee. it is presumed that a person driving a motor vehicle
has been negligent
The required diligence of a good father of a family pertains not only to the if at the time of the mishap,
selection but also tot he supervision of employees. It is not enough that the he was violating any traffic regulation. (n)

Page 5! of 15
!
Torts & Damages
3A Atty. Calleja

D. Common Carrier E. Dangerous Weapons and Substances

Art. 1733. Art. 2188.

Common carriers,
from the nature of their business and
for reasons of public policy,
are bound to observe extraordinary diligence
in the vigilance over the goods and
for the safety of the passengers transported by them,
according to all the circumstances
of each case.
There is prima facie presumption of negligence
on the part of the defendant
if the death or injury results from his possession
of dangerous weapons or substances,
such as firearms and poison,
except when the possession or use thereof
is indispensable
in his occupation or business. (n)

Such extraordinary diligence in the vigilance over the goods GR: If death or injury results from a defendant’s possession of dangerous
is further expressed in Articles 1734, 1735, and 1745, weapons or substances, there is prima facie presumption of negligence.
Nos. 5, 6, and 7, - Dangerous weapons: nuclear missiles, firearms, samurai
while the extraordinary diligence for the safety of the passengers - Dangerous substances: poison, cyanide, uranium, plutonium, red
is further set forth in Articles 1755 and 1756.
 kryptonite

SUBSECTION 2. - Vigilance Over Goods EXCP: When the possession or use thereof is indispensable in his
occupation or business.
Art. 1734.
Common carriers are responsible Licensed possessors of firearms have the perememtory duty to adequately
for the loss, destruction, or deterioration of the goods, safeguard dangerous weapons at all times, and to take all the required
unless the same is due measures to prevent minors and their unauthorised parties from having
to any of the following causes only: access thereto. Competent observers have recently called attention to the
fact that the growing teenage hooliganism in our society is principally due to
(1) Flood, storm, earthquake, lightning, or parent’s complacency in and neglect of their progeny.
other natural disaster or calamity;

5. Defenses
(2) Act of the public enemy in war,
whether international or civil;
 A. Contributory Negligence

(3) Act of omission of Art. 2179.

the shipper or owner of the goods;
 When the plaintiff's own negligence
was the immediate and proximate cause of his injury,
(4) The character of the goods or he cannot recover damages.
defects in the packing or in the containers;
 But if his negligence was only contributory,
the immediate and proximate cause of the injury
(5) Order or act of competent public authority. being the defendant's lack of due care,
the plaintiff may recover damages,
but the courts shall mitigate
the damages to be awarded. (n)

Page 6! of 15
!
Torts & Damages
3A Atty. Calleja
Contributory negligence
- conduct on the part of the injured party wherein by his own negligence
(which is the immediate and proximate cause of the injury) he is not
entitled to recover damages in full, but must proportionately bear the
consequences of his own negligence. The defendant is only held liable for
the damages actually caused by his negligence to the injured party who
caused his own injury.
Emergency rule
Under the emergency rule, one who suddenly finds himself in a place of
danger, and is required to act without time to consider the best means that
may be adopted to avoid the impending danger, is not guilty of negligence,
if he fails to adopt what subsequently and upon reflection may appear to
have been a better method, unless the emergency in which he finds himself
is brought about by his own negligence.
B. Assumption of Risk
Art. 1174.
Except in cases expressly specified by the law, or
when it is otherwise declared by stipulation, or
when the nature of the obligation requires the assumption of risk,
no person shall be responsible
for those events which could not be foreseen, or
which, though foreseen, were inevitable. (1105a)
It is a voluntary assumption of a risk of harm arising from the negligent
conduct of the defendant or from the nature of obligations itself. It
presupposes an intentional exposure to a known peril.
C. Last Clear Chance
Where both parties are guilty of negligence, but the negligent act of one
ssuceeeds that of the other by an appreciable interval of time, the one who
has the last reasonable opportunity to avoid the impending harm and
fails to do so, is chargrable with the consequences, without reference to the
prior negligence of the other party.
The negligence of the injured party does not preclude a recovery for
damages due to the negligence of the defendant where it appears that the
latter, by exercising reasonable care and prudence, might have avoided
Page 7! of 15
injurious consequences to the injured party notwithstanding his negligence.
In other words, the antecedent negligence of the plaintiff does not preclude
him from recovering dmages caused by the supervening negligence of the
defendant, who had the last fair chance to prevent the impending harm or
injury by exercising due diligence. Therefore, the person who had the last
clear chance to avoid the impending harm or injury is considered in law
as solely responsible for the consequences thereof.
Elements of the doctrine of last clear chance
1. Plaintiff is placed in danger by his own negligent acts and is unable to
get out from such situation by any means
2. Defendant knows that the palintiff is in danger and knows/should have
known that the plaintiff was unable to get out from such situation
3. Defendant had the last clear chance to avoid the impending harm or
injury through the exercise of due diligence, but had failed to do so
4. Such failure is the proximate cause of the injury.
Doctrine does not apply in the following circumstances
1. Collapse of a building or structure
2. In a suit between the owner of the vehicle and its passenger
3. When an injury cannot be avoided by application of all means at hand
after peril has been discovered.
D. Prescription
Article 1146 of the Civil Code of the Philippines as amended by PD No.
1755:
The following actions must be instituted within four years:
(1) Upon injury to the rights of the plaintiff;
(2) Upon a quasi-delict;
However, when the action arises
from or out of any act, activity, or conduct of any public officer
involving the exercise of powers or
authority arising from Martial Law
including the arrest, detention and/or trial
of the plaintiff,
the same must be brought within one (1) year.
The action must be instituted from the time that the tortious act was known
or discovered.
!
Torts & Damages
3A Atty. Calleja

E. Fortuitous Events If the law or contract does not state the diligence
which is to be observed in the performance,
Art. 1174. that which is expected of a good father of a family
Except in cases expressly specified by the law, or shall be required. (1104a)
when it is otherwise declared by stipulation, or
when the nature of the obligation requires the assumption of risk, The kinds of diligence to be observed by the parties are as follows:
no person shall be responsible for those events 1. Diligence stipulated by the parties
which could not be foreseen, or 2. If there is no stipulation, the diligence orequired by law governing the
which, though foreseen, were inevitable. (1105a) particular obligation
3. In the absence of the foregoing, the diligence which is expected of a good
Requisites of a fortuitous event: father of the family
1. The cause is independent of the debtor/obligor's will
2. It was unforseen or unavoidable event G. Mistake and Waiver
3. The happening of the event made it possible for the debtor/obligor to
fulfill his obligation in a normal manner Art. 1331.
4. The debtor did not take advantae fo the event to aggravate the injury to In order that mistake may invalidate consent,
the creditor/obligee. it should refer to the substance of the thing
which is the object of the contract, or
GR: there is no liability for a fortuitous event to those conditions
which have principally moved one or both parties
EXCP: to enter into the contract.
1. When the law expressly so declares
2. When expressly stated in the contract Mistake as to the identity or qualifications of one of the parties
3 When the obligation's nature requires the assumption of risk will vitiate consent
4. When the obligor/debtor is in default or has promised to deliver the same only when such identity or qualifications
thing to 2 or more persons who don't have the same interest. have been the principal cause of the contract.

F. Diligence A simple mistake of account

shall give rise to its correction. (1266a)
Art. 1173.
The fault or negligence of the obligor The concept of error must include both ignorance (which is the absence of
consists in the omission of that diligence knowledge with respoect to a thing) and mistake (which is the wrong
which is required by the nature of the obligation and conception about a thing, or a belied in the existence of some circumstance,
corresponds with the circumstances fact, or event that does not exist in reality). In both cases, there is lack of full
of the persons, and correct knowledge.
of the time and
of the place. Art. 6.
Rights may be waived,
When negligence shows bad faith, unless the waiver is
the provisions of Articles 1171 and 2201, paragraph 2, shall apply. contrary to law,
public order,
public policy,

Page 8! of 15
!
Torts & Damages
3A Atty. Calleja

morals, or Elcano v. Hill

good customs, or The obligation imposed by article 2176 is demandable not only for one's
prejudicial to a third person own acts or omissions, but also for those of persons for whom one is
with a right recognized by law. (4a) responsible. The father and, in case of his death or incapacity, the mother,
are responsible for the damages caused by the minor children who live in
H. Others their company.

Carlos Sison v. Gonzalo David IV. Vicarious/Primary/Solidary Liability

Utterances made in the course of judicial proceedings,including all kinds of
pleadings, petitions and motions, belong to the class of communications that 1. Vicarious Liability
are absolutely privileged. No action for libel may be founded thereon when
pertinent and relevant to the subject under inquiry, however false and Art. 2180.
malicious such statements may be. The obligation imposed by Article 2176 is demandable not only
for one's own acts or omissions,
Alfredo Malit v. People of the Philippines but also for those of persons for whom one is responsible.
Where the libelous or slanderous words published in the course of judicial
proceedings are connected with, or relevant, pertinent or material to, the The father and,
cause in hand or subject of inquiry, the same may be considered privileged in case of his death or incapacity, the mother,
communication and the counsel, parties or witnesses therein are exempt are responsible for the damages caused by the minor children
from liability who live in their company.

Proline v. CA Guardians are liable for damages

For there to be malicious prosecution, the following elements must be caused by the minors or
present: 1) absence of probable cause and 2) legal malice on the part of the incapacitated persons
petitioners who are under their authority and
live in their company.
Amonoy v. Spouses Gutierrez
Well-settled is the maxim that damage resulting from the legitimate exercise The owners and managers of an establishment or enterprise are
of a person's rights is a loss without injury -- damnum absque injuria -- for likewise responsible for damages caused by their employees
which the law gives no remedy. One who merely exercises his rights does no in the service of the branches in which the latter are
actionable injury and cannot be held liable for damages. employed or
Mariscal v. Court of Appeals on the occasion of their functions.

Mariscal v. Court of Appeals Employers shall be liable for the damages

For litis pendencia to be invoked, there must be: (a)nidentity of parties, or at caused by their employees and household helpers
least such as representing the same interest in both actions; (b)identity of the acting within the scope of their assigned tasks,
rights asserted and relef prayed for, the relief being founded on the same even though the former
facts; and, (c) identity in the 2 cases should be such that the judgement that are not engaged in any business or industry.
may be rendered in the pending case would amount to res judicata in the
other The State is responsible in like manner
when it acts through a special agent;
but not when the damage has been caused

Page 9! of 15
!
Torts & Damages
3A Atty. Calleja

by the official to whom the task done properly pertains, Person Liable Person Negligent Requisites
in which case what is provided in Article 2176
shall be applicable.
1 . F a t h e r / Minor Minor must be living in the
Mother parents company
Lastly, teachers or heads of establishments of arts and trades
shall be liable for damages 2. C o u r t - Minor 1. Under the authority/custody
caused by their pupils and students or apprentices, a p p o i n t e d Incapacitated person of person liable
so long as they remain in their custody. guardian 2. Living in the guardian's
company
The responsibility treated of in this article shall cease
when the persons herein mentioned prove 3 . O w n e r / Employee 1. Circumstance
that they observed all the diligence M a n a g e r a. In the service of branch where
of a good father of a family to prevent damage. (1903a) of establishment person negligent is employed
or enterprise b. In occasion of the negligent
It is the "doctrine of imputed negligence" under Anglo-American tort law. person's functions
Vicarious liability occurs when a person is not only liable for torts 2. Employer-employee
committed by him, but also for torts committed by others with whom he has relationship
certain relationship and for whom he is responsible.
4. Employer Employee Acting within the scope of the
The basis of vicarious liability is explained in the case of Cangco vs. Manila Household helpers negligent person’s assigned tasks
Railroad Co.
NOTE: This applies even though
With respect to extra contractual obligation arising from negligence, employer is not engaged in any
whether of act or omission, it is competent for the legislature to elect - and business
our Legislature has so elected - whom such an obligation is imposed is 5. State Special Agent 1. Definite order to do task
morally culpable, or on the contrary, for reasons of public policy, to extend 2. Foreign to usual functions
that liability, withouot regard to the lack of moral culpability, so as to
include responsibility for the negligence of those persons whose acts or
omissions are imputable, by a legal fiction, to others who are ina position to 6. Teachers Student Person negligent must be under
exercise an absolute or limited control over them. The legislature which Head o f Apprentice the teacher or head of the
adopted our Civil Code has elected tolimit extra-contractual liability - with Establishments establishment's custody
certain well defined exceptions - to cases which moral culpability can be
directly imputed to the persons to be charged. This moral responsibility may
consist in having failed to exercise due care in the selection and control of
one's agents or servants, or in the control of persons, who, by reason of their A. Parents and Guardians
status, occupy a position of dependency with respect to the person made Art. 2180.
liable for their conduct.” XXX
The father and,
in case of his death or incapacity, the mother,
are responsible for the damages caused by the minor children
who live in their company.
XXX

Page 10
! of 15
!
Torts & Damages
3A Atty. Calleja
Guardians are liable for damages
caused by the minors or
incapacitated persons
who are under their authority and
live in their company.
The liability imposed by these is based on the principle that since children
and wards do not have the capacity to govern themselves, their parents and
guardians have the duty of exercising special vigilance over them so that
damage to third persons due to ignorance, foresight or discernment of such
children and wards may be avoided.
It may be seen to be based upon the parental authority vested by the Civil
Code upon such parents. The civil law assumes that when an
unemapancipated child living with his parents commits a tortious act, the
parents were negligent in the performance of their legal and natural duty to
closely supervise the cild who is in their custody and control. Parental
liability is, in other words, anchored upon parental authority coupled with
the presumed parental dereliction in the discharged of the duties
accompanying such authority.
Furthermore, the Court explains that this civil liability is a necessary
consequence of the authority of the parents over the minors which imposes
upon the former the duty of supporting them, keeping them in their
company, educating them and instructing them in proportion to their means,
while, on the other hand, gives them the right to correct and punish them in
moderation. Thus, the Court provides, "the only way which they can relieve
themselves of this liability is if they prove that they exercised all the
diligence of a good father of a family to prevent the damage.”
B. Owners and Managers of Establishments
Art. 2180
The owners and managers of an establishment or enterprise
are likewise responsible for damages caused by their employees
in the service of the branches
in which the latter are employed or
on the occasion of their functions.
Page ! 11 of !15
Requisites for an Owner or Manager of an establishment or enterprise
to be liable:
1. The act must have been done in the service of a branch where s/he is
employed or in occasion of his/her functions;
2. There must be an employer-employee relationship between them.
C. Employers
Art. 2180.
Employers shall be liable for the damages
caused by their employees and household helpers
acting within the scope of their assigned tasks,
even though the former are not engaged in any business or
industry.
Requisites for the Employers to be liable:
1. An employer-employee relationship;
2. Employee is acting within the scope of his assigned task when the act was
committed
The liability imposed by these provisions upon owners, managers and
employers is based on their own negligence in the selection of ther
employees or in the supervision of their employees.
The case of Martin v. Court of Appeals states the necessity to first establish
the employment relationship and upon doing so, the plaintiff must show that
the employee was acting within the scope of his assigned task when the tort
complained of was committed. The case then says, "It is only then that the
defendant, as employer, may find it necessary to interpose the defense of
due diligence in the selection and supervision of the employee."
There should be a criminal action where employee's negligence is proved.
Failure to prove employee's negligence is fata to proving the employer's
vicarious liability.
A case further explains the responsibility given to the employers:
"The responsibility imposed by this article arises by virtue of a presumption
juris tantum of negligence on the part of the persons made responsible under
the article, derived from their failure to exercise due care and vigilance over
the acts of subordinates to prevent them from causing damage. Negligence is
imputed to them by law, unless they prove the contrary. Thus, the last
paragraph of the article says that such responsibility ceases if is proved that
Torts & Damages
3A Atty. Calleja
the persons who might be held responsible under it exercised the diligence
of a good father of a family (diligentissimi patris familias) to prevent
damage. It is clear, therefore, that it is not representation, nor interest, nor
even the necessity of having somebody else answer for the damages caused
by the persons devoid of personality, but it is the non-performance of certain
duties of precaution and prudence imposed upon the persons who become
responsible by civil bond uniting the actor to them, which forms the
foundation of such responsibility.”
Distinction between 4th and 5th paragraphs of Article 2180:
Clarifying the difference between 4th and 5th paragraphs of Article 2180,
the Supreme Court states:
"A distinction must be made between the two provisions to determine what
is applicable. Both provisions apply to employers: the fourth paragraph, to
owners and managers of an establishment or enterprise; and the fifth
paragraph, to employers in general, whether or not engaged in any business
or industry. The fourth paragraph covers negligent acts of employees
committed either in the service of the branches or on the occasion of their
functions, while the fifth paragraph encompasses negligent acts of
employees acting within the scope of their assigned task. The latter is an
expansion of the former in both employer coverage and acts included.
Negligent acts of employees, whether or not the employer is engaged in a
business or industry, are covered so long as they were acting within the
scope of their assigned task, even though committed neither in the service of
the branches nor on the occasion of their functions. For, admittedly,
employees oftentimes wear different hats. They perform functions which are
beyond their office, title or designation but which, nevertheless, are still
within the call of duty."
Definition of "within the scope of his assigned tasks"
In the case if Filamer Christian Institute v. IAC, the Court held that acts
done within the scope of the employee's assigned tasks include any act done
by an employee in furtherance of the interests of the employer or for the
account of the employer at the time of the infliction of the injury or
damages.
Page 12
! of 15
D. State
Art. 2180.
XXX
The State is responsible in like manner
when it acts through a special agent;
but not when the damage has been caused
by the official to whom the task done properly pertains,
in which case what is provided in Article 2176
shall be applicable.
XXX
The State cannot be sued without its consent, except:
1. When it is performing proprietary functions;
2. When the State enters into a contract with a private person; or
3. Acts through a special agent
Failure to prove employee's negligence is fatal to proving the employer's
vicarious liability.
A special agent is one who receives a fixed compensation foreign to the
exercise of duties of his office. The Court discusses in a case the limitation
of the State's responsibility in damage cases:
In a damage case, the responsibility of the state is limited to that which it
contracts through a special agent, duly empowered by a definite order or
commission to perform some act or charged with some definite purpose
which gives rise to the claim, and not where the claim is based on acts or
omissions imputable to a public official charged with some administrative or
technical office who can be held to the proper responsibility in the manner
laid down by the law of civil responsibility.
E. Teachers/Heads of Establishment
Art. 2180.
XXX
Lastly, teachers or heads of establishments of arts and trades
shall be liable for damages caused
by their pupils and students or apprentices,
so long as they remain in their custody.
XXX
!
Torts & Damages
3A Atty. Calleja

The liability imposed upon them is based on the failure to exercise the not, is not a matter of concern for the law does not speak only of vicious
degree of care, custody and supervision over their students necessary to animals but covers even tame ones as long as they cause injury.
prevent damage to persons.
Vestil further explains the basis of such liability:
Palisoc v. Brillantes provides that the rationale of the liaibility of school According to Manresa the obligation imposed by Article 2183 of the Civil
heads and teachers for the tortious acts of their pupils and students, so long Code is not based on the negligence or on the presumed lack of vigilance of
as they remain in their custody, is that they stand, to a certain extent, as to the possessor or user of the animal causing the damage. It is based on
their pupils and students, in loco parentis of the child. natural equity and on the principle of social interest that he who possesses
animals for his utility, pleasure or service must answer for the damage which
The case further explains: "In the law of torts, the governing principle is that such animal may cause.
the protective custody of the school heads and teachers is mandatorily
substituted for that of the parents, and hence, it becomes their obligation as B. Owners of Motor Vehicles
well as that of the school itself to provide proper supervision of the students'
activities during the whole time that they are at attendance in the school, Art. 2184.
including recess time, as well as to take the necessary precautions to protect In motor vehicle mishaps,
the students in their custody from dangers and hazards that would the owner is solidarily liable with his driver,
reasonably be anticipated, including injuries that some student themselves if the former, who was in the vehicle,
may inflict willfully or through negligence on their fellow students.” could have, by the use of the due diligence,
prevented the misfortune.
2. Primary Liability It is disputably presumed that a driver was negligent,
if he had been found guilty of
A. Possessors/Users of Animals reckless driving or
violating traffic regulations
Art. 2183. at least twice within the next preceding two months.
The possessor of an animal or
whoever may make use of the same If the owner was not in the motor vehicle,
is responsible for the damage which it may cause, the provisions of Article 2180 are applicable. (n)
although it may escape or be lost.
This responsibility shall cease only in case the damage should come Art. 2185.
from force majeure or Unless there is proof to the contrary, it is presumed that a person driving a
from the fault of the person who has suffered damage. (1905) motor vehicle
has been negligent
The possessor of an animal or whoever may make us of the same is if at the time of the mishap,
responsible for the damage which it may cause. he was violating any traffic regulation.

Exceptions: Art. 2186.

1. Force majeure
2. Fault of the injured / damaged person
In the case of Vestil v. IAC, Article 2183 of the Civil Code holds the
possessor liable even if the animal should "escape or be lost" and so be
removed from his control. The nature of the animal, whether it be tame or
Every owner of a motor vehicle shall file with the proper government office
a bond executed by a government-controlled corporation or office,
to answer for damages to third persons.
The amount of the bond and other terms
shall be fixed by the competent public official. (n)

Page 13
! of 15
!
Torts & Damages
3A Atty. Calleja
In a motor vehicle mishaps, the owner is solidarily liable with the driver if:
1. He was in the vehicle
2. He could have, through due diligence, prevented the misfortune.
The driver is presumed negligent by law if:
1. He has been found guilty of reckless driving or violating traffic
regulations at least twice within the next preceeding 2 months
2. At the time of the mishap, he was violating any traffic regulation.
According to Chapman vs. Underwood, the owner of the vehicle is not liable
if the driver violates criminal law by a sudden act of negligence, and without
the owner having a reasonable opportunity to prevent the acts or its
continuance. For the owner to be liable, the act must have been continued in
his or her presence for such a length of time that the owner by his
acquiescence, makes his driver's act his own.
It has been consistently held by this Court has that regardless of who the
actual owner of a motor vehicle might be, the registered owner is the
operator of the same with respect to the public and third persons, and as
such, directly and primarily responsible for the consequences of its
operation. In contemplation of law, the owner/operator of record is the
employer of the driver, the actual operator and employer being considered
merely as his agent.
The case, however, of FGU insurance v. Court of Appeals, illustrates a
situation wherein the driver was a lessee of the vehicle, thus, Art. 2184 is not
applicable because of the absence of a mater-driver relationship between the
registered owner and the lessee driver.
C. Manufacturers and Processors (RA 7394)
Art. 2187.
Manufacturers and processors of
foodstuffs, drinks, toilet articles and similar goods
shall be liable for death or injuries
caused by any noxious or harmful substances used,
although no contractual relation exists
between them and the consumers. (n)
Manufacturers and processors are liable for death and injuries caused by any
noxious or harmful substances used although no contractual relation exists
between them and the consumers
Page 14
! of 15
As provided for in the Consumer Act of the Philippines, RA 7394:
Article 97. Liability for the Defective Products. – Any Filipino or foreign
manufacturer, producer, and any importer, shall be liable for redress,
independently of fault, for damages caused to consumers by defects
resulting from design, manufacture, construction, assembly and erection,
formulas and handling and making up, presentation or packing of their
products, as well as for the insufficient or inadequate information on the use
and hazards thereof.
A product is defective when it does not offer the safety rightfully expected
of it, taking relevant circumstances into consideration, including but not
limited to:
a. presentation of product;
b. use and hazard resonably expected of it;
c. the time it was put into circulation.
A product is not considered defective because another better quality product
has ben placed in the market.
The manufacturer, builder, producer or importer shall not be held liable
when it evidences:
a. that it didnot place the product on the market
b. that although it did place the product ont he market such produc has no
defect.
c. that the consumer or a third party is solely at his fault.
D. Municipal Corporations
Art. 2189.
Provinces, cities and municipalities
shall be liable for damages
for the death of, or injuries suffered by, any person
by reason of the defective condition of
roads, streets, bridges,
public buildings, and other public works
under their control or supervision. (n)
It is not necessary for the defective road or street to belong to the province,
city or municipality for liability to attach. The article only required that
either control or supervision is exercised over the defective road or street.
!
Torts & Damages
3A Atty. Calleja

The Carter only lays down general rules regulating the liability of the city. Art. 2193.
On the other hand, Article 2189 applies in particular to the liability arising The head of a family that lives in a building or a part thereof,
from defective streets, public buildings, and other public works. is responsible for damages
caused by things thrown or falling from the same. (1910)
E. Building Proprietors
FELIZA P. DE ROY vs. COURT OF APPEALS
Art. 2190. GOTESCO INVESTMENT CORPORATION V. CHATTO AND CHATTO
The proprietor of a building or structure
is responsible for the damages F. Engineers/Architects/Contractors
resulting from its total or partial collapse, Art. 2192.
if it should be due to the lack of necessary repairs. (1907) If damage referred to in the two preceding articles
should be the result of any defect
Under this article, the proprietor of a building or structure is liable when the in the construction mentioned in Article 1723,
following cases concur: the third person suffering damages may proceed
a. When the buildings or structure needed necessary repairs only against the engineer or architect or contractor
b. The proprietor of the bulding failed to put up the necessary repairs; and in accordance with said article,
c. There is partial or total collapse of said building or structure due to lack of within the period therein fixed. (1909)
necessary repairs.
G. Solidary Liability
Art. 2191.
Proprietors shall also be responsible for damages caused: Art. 2194.
The responsibility of two or more persons
(1) By the explosion of machinery who are liable for quasi-delict
which has not been taken care of with due diligence, and is solidary. (n)
the inflammation of explosive substances
which have not been kept in a safe and adequate place; Joint tort feasors are jointly and severally liable for the tort which they
commit. The person injured may sue all of them, or any number less than all.
(2) By excessive smoke, Each is liable for the whole damage caused, and together are jointly liable
which may be harmful to persons or property; for the whole damage to each other.

(3) By the falling of trees situated at or near highways or lanes, Joint tort feasors are not liable pro rata. The damages can not be apportioned
if not caused by force majeure; among them, except among themselves. They are jointly and severally
liable for the full amount to the injured person.
(4) By emanations from tubes, canals, sewers or deposits
of infectious matter,
constructed without precautions suitable to the place. (1908)

There is no certain pecuniary standard by wich such damage can be

measured, and in that sense the threatened injury is irreparable and may
appropriately be restrained by an injunction.

Page 15
! of 15
!