TORTS

Refers to a legal wrong.

Elements:

1. Plaintiff has existing legal right.

2. Act or omission is violative of plaintiff’s right.
3. Defendant’s act is proximate cause of the violation
of plaintiff’s right.
4. Damage is incurred due to such violation.

Quasi-delicts – fault or negligence of a person, who

by his act or omission, connected or unconnected with
but independent from any contractual relation, causes
damage to another person.

* Either punishable or not punishable by law. Or

criminal in character or not.

INJURY – legal wrong

LEGAL WRONG – illegal invasion of a legal right or
injury.
DAMAGE – harm done
DAMAGES – cost of damage

Prohibition against double recovery

The injured party cannot recover damages TWICE.

EX: In negligence cases, the aggrieved party can
either enforce civil liability under culpa criminal (Art.
100, RPC) or file a separate action for quasi-delict (Art.
2176, NCC). When he has recovered from one action,
1
the injured party is BARRED from the other remedy
because he cannot recover damages twice for the
same act.

* An aggrieved party may RESORT TO BOTH REMEDIES

simultaneously or successively, BUT MAY ONLY
RECOVER THE BIGGER AMOUNT. So if he successively
files the cases, he can recover from the 2 nd amount if
the amount adjudged is larger and only to the EXTENT
of the EXCESS.

Elements in an action based on quasi-delict

(CULPA AQUILIANA)

1. Fault or negligence of the defendant.

2. Damage suffered by the plaintiff.
3. The relation of cause and effect between the
fault/negligence of the defendant and the damage
incurred by plaintiff.

* Plaintiff has the burden of proof, must be proven

otherwise, the case will not stand. XPN: RES IPSA
LOQUITUR – hard to prove (negligence or fault) The
burden of proof is on the defendant.

Who are possible tortfeasors

1. Direct tortfeasor
2. Persons made responsible for others.
a. Parents, as re: damage caused by minor children
who live in their company.

2
b. Guardians, as re: damage caused by minor or
incapacitated persons under their authority and living
in their company.
c. Owners and managers of establishment/enterprise,
as re: damage caused by employees on occasion of
their funcions.
d. Employers, as re: damage caused by employees
and household helpers acting within the scope of
duties.

* This thus covers responsibility of the registered

owner of a vehicle for acts of his driver.

e. State, when it acts through a special agent (But not

when the damage caused by the official to whom the
task done properly pertains. In this case, the official
alone is responsible.

Special Agent – a government employee who is

performing a job foreign to his usual duties.

f. Teachers or heads of establishments of arts and

trade, as re: damage caused by students or
apprentices when they are in the former’s custody.

Employer’s liability under Art. 2180, NCC and

Art. 103, RPC

Art. 2180, NCC Art. 103, RPC

In quasi-delict, only
requires
preponderance of
3
evidence.

Employer’s liability is Employer’s liability is

direct and primary. subsidiary, so the
employee has to be
found insolvent, before
the employer becomes
liable.
Defense available: Due
diligence in the
selection and
supervision of the
employee.
The employee need
not be insolvent,
because the employee
and employer are both
primary liable. (joint
tortfeasors)
The felony committed
by the employee must
be in the discharge of
duty.

Requisites for subsidiary civil liability of

employer

1. ER-EE relationship.
2. ER is engage in some industry.
3. EE committed criminal act in the discharge of his
duties (not necessarily “WHILE” in the discharge of
duties)
4
Schloendorff Doctrine – as a general rule, hospitals
are not liable for the negligence of an independent
contractor physician.

XPNS:

1. Apparent authority – if the hospitals’ actions as

principal misleads the public into believing that the
relationship or authority exists.
2. Corporate negligence – if the hospital fail to give
reasonable effort in monitoring or overseeing the
treatment prescribed and administered by the
physicians practicing in their premises.

Presumption when an injury is caused by the

negligence of an employee – Presumption that the
employer is also negligent and is thus solidarily liable.

REBUTTABLE by showing exercise of diligence of GFF

in selection and supervision of the employee.

When driver is presumed negligent

1. Guilty of reckless driving at least TWICE in the

preceding two months.
2. Violation of traffic regulations at least TWICE in the
preceding two months.
3. Violating a traffic regulation during the mishap.

Liability of joint tortfeasors – solidary

When can the State be a tortfeasor

5
1. Performance of PROPRIETARY FUNCTIONS.
2. State enters into contract with private person.
3. Imputed liability under Art. 2180 for acts of special
agents.

Proximate Cause – that cause which, in natural and

continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without
which the result would not have occurred.

Remote cause – one that is removed or separate

from the proximate cause of the injury.

Immediate cause – final act in the series of causes

leading to a particular result or event, directly
producing the result. (Stricter than proximate cause –
in torts, only proximate cause is needed.)

Contributory negligence – If the negligence of the

plaintiff cooperated with the negligence of the
defendant in bringing about the injury, such
negligence of the plaintiff would be an absolute bar to
recovery.

If the negligence of the plaintiff is merely contributory,

the immediate and proximate cause to the injury still
being the defendant’s acts, then the amount
recoverable by the plaintiff is mitigated by the courts.

Imputed negligence – the negligence of a certain

person in a transaction or act which gave rise to the
injury complained of is imputable or chargeable
6
against the person for whom he was acting or against
his associates.

Last Clear Chance (Discovered peril,

humanitarian doctrine)

Where both parties are negligent in such away that it

would be impossible to determine whose negligence
was the proximate cause, then the party with the last
clear opportunity to avoid the accident through proper
care and failed to do so is the party SOLELY
responsible for the injury.

Elements:

1. Prior negligence of the plaintiff.

2. Defendant knew the plaintiff’s negligence.
3. Defendant had last clear chance to avoid the peril
but failed to do so.
4. Accident occurs due to the negligence of the
defendant.

Intentional torts

Elements of abuse of right

1. Legal right or duty.

2. Exercised in BF.
3. For the sole intent of injuring or prejudicing another.
EX: Creditors already discussed pari passu division of
claim as against insolvent person, then one creditor

7
assigned his claim to a third person so the latter can
recover in full.

Elements of acts contrary to law

1. Act is willful or negligent.

2. It is contrary to law.
3. Damage suffered by the injured party.

* This applies when there is no specific law providing

for indemnity for the violation of such and damage is
caused.

Elements of acts contrary to morals

1. Legal act.
2. Contrary to morals, good customs, public order or
public policy.
3. Done with intent to inure.

Elements of unjust enrichment

1. No just or legal ground for defendant’s enrichment.

2. Enrichment on the part of the defendant.
3. Enrichment is at the expense of the plaintiff.
4. Damage or loss suffered by the plaintiff.

* This claim applies when there is no other remedy in

contract, quasi-contract, crime or quasi-delict. And so,
if there is failure to pay for services, but there is a
contract, file under the contract and not unjust
enrichment.
8
Negligence

Presumption of negligence in the ff:

1. Res ipsa loquitur – When a thing is shown to be

under the management of the defendant or his
employees, and the accident in the ordinary course of
events would not have occurred had there been
proper care, it gives rise to evidence that the accident
was due to the fault of the defendant, unless rebutted.

Elements:

a. Accident would not ordinarily occur in the absence

of negligence.
b. Caused by an agency or instrumentality under the
exclusive control of the defendant.
c. Not due to any voluntary action or contribution of
the plaintiff.

2. If the death or injury results from possession of

dangerous weapon or substances, expect when
possession of such is indispensable to his occupation
or business.
3. Violation of traffic rules
4. Common carriers
5. Respondeat superior

Defenses against Negligence

9
1. Contributory Negligence – partial defense that
mitigates damages.

2. Assumption of Risk – Even if there is assumption

of risk, measures must be taken by the defendant to
minimize risk to the injured party.

Elements:
a. Plaintiff knew the risk is present
b. He understood its nature.
c. He freely and voluntarily chose to incur the risk.

3. Last clear chance – this doctrine will not apply as

a defense for breach of contract of carriage. Neither
can one negligent party use this as a defense against
liability to a third person, by pointing at the
negligence of another. It must be between two parties
in a situation where it is impossible to determine
whose negligence it was that was the proximate cause
of the accident.

4. Prescription

Usual prescription – 4 years from discovery of the act

(discovery rule)

1 year if from the act of a public officer involving

exercise of powers/duties.

Prescriptive periods under the Consumer Act

4 years from purchase for apparent defects

10
2 years from knowledge or purchase for hidden
defects

5. Fortuitous event

6. Diligence

For employers, diligence of a GFF in the selection and

supervision of employees.

7. Mistake and waiver

8. Damnum absque injuria – damage without

injury, arising from a person’s exercise of his legal
rights.

If the injury arises from abuse of right, then damnum

absque injuria does not apply.

9. Emergency Rule – one who suddenly finds himself

in danger and is required to act without time to
consider the best means to avoid the danger is not
guilty of negligence for failing to choose the best
option, in hindsight. Unless the emergency in which he
finds himself in is his own doing.

Special liability in particular activities

1. Special liability of provinces, cities,

municipalities as to roads and streets

11
- They are liable for injuries caused by defective
condition of roads and streets.
- This special liability trumps provisions on liability
arising from charters and general laws.
- The road or street need not necessarily be owned by
the LGU (thus it can be a national road). What matters
is that it is under their control and supervision of the
said road/street.

2. Responsibility of a proprietor of
building/structure

- He is responsible for injuries caused by its total or

partial collapse. If it be due to lack of necessary
repairs.
- The doctrine e of last clear chance does not apply
here. (Roy vs. CA)

Likewise responsible for:

a. Explosion of machinery not taken care of with due

diligence.
b. Excessive smoke harmful to persons/property.
c. Falling trees situated near highways or lanes, if not
due to force majeure.
d. Emanations from tubes, canals, sewers or deposits
of infectious matter constructed without precausions.

3.Engineers, Architects, Contractors liability for

collapse of a building

12
- The engineer or architect who drew up plans and
specifications is liable for damages if within 15 years
from completion, the building collapses due to:

a. Defects in the plans or

b. Defects in the ground

- The contractor is liable for damages if within 15

years the edifice falls due to:

a. Defects in construction
b. Use of inferior materials
c. Violation of terms of contract

Prescriptive PERIOD – within 10 years of collapse of

the building.

* Since the obligation of the engineer, architect,

contractor is an obligation to do, the owner of the
building may demand reconstruction if the building
collapses due to the fault of any of the former. (If a
person is obliged to do something in contravention of
an obligation, it may be executed at his own cost. Or
what has been poorly done can be undone, and then
reconstructed.)

Doctrine of Strict Liability

1. Possessors and users of animals – the possessor not

just the owner of the offending animal is liable even if
the animal escapes or becomes lost. It does not
matter that the dog was tame and was merely

13
provoked. The owner/possessor is liable so long as the
animal causes injury.

2. Nuisance (Property Law)

3. Product liability/violations of Consumer Act

DAMAGES

Different Kinds of Damages

1. Actual or compensatory
2. Moral
3. Nominal
4. Temperate or moderate
5. Liquidated
6. Exemplary or corrective

General principles applied to damages

a. Amount must be fair, just and commensurate to the

damage.
b. Damage and amount proven by competent
evidence.
c. Only proximate damages, not remote or
speculative, may be recovered.

What must be proved so that damages may be

recovered

a. Injury (legal invasion of a right)

b. Breach of duty (wrongful act, not just hurtful)
14
c. Breach must be the proximate cause of the injury

1. Actual or Compensatory Damages – must be

duly proved with certainty Ex: By receipts

Actual Damages – compensation for pecuniary loss

actually suffered and proved by the plaintiff.

GR: One is entitled to adequate compensation only for

pecuniary loss suffered by him as has been proved.

Measure is not defendant’s gain, but plaintiff’s loss.

Except in certain cases like in the IP Code (measured
by benefit of defendant)

XPN: 1. Stipulation
2. Provided by law (ex: fixed indemnity)

Kinds of Actual Damages

1. Dano emergente – loss of what a person already

possesses. (from the pocket)
- Court only gives credence to those expenses
SUPPORTED BY RECEIPTS and which appear to have
INCURRED IN CONNECTION with the wake, death or
burial of the victim.

2. Lucro cesante – failure to receive as a benefit that

would have pertained to him. (failed ton come into the
pocket)

Restitutio in integrum – amount awarded to the

plaintiff must be that sum which will put the party who
15
was injured or who has suffered in the same position
as he would have been if he had not sustained the
injury.

* Nominal and Temperate damages is not anymore

recoverable when actual or compensatory damages is
already awarded.

Recoverable value in the following instances

Damage to property – value of the property at the

time of destruction.

Personal injury or death

a. Reasonable expenses incurred to treat his or her
relative’s injury.
b. Future medical expenses
c. IN case of death, for wake and funeral expenses.
(NB: Expenses after burial are NOT COMPENSABLE)

Loss of earning capacity = Life expectancy x (Gross

annual income – necessary living expenses)

Life expectancy – (2/3 x (80 – age at time of death)

Living expenses – fixed at 50% of the gross income in

the absence of proof of amount of living expenses.

In case of Support

The recipient who is not an heir called to inheritance

by law may demand support from the person causing
death for a period not beyond 5 YEARS.
16
Fixed Indemnity – It does not replace the loss of
earning capacity
P50k – payment to heirs of decease
P75k – payment for qualified rape

Attorney’s Fees

GR: Attorney’s fees cannot be recovered

XPNS:

1. Based on Award
a. Exemplary damages are awarded
b. Double judicial costs awarded

2. Bad Faith
c. Malicious prosecution
d. Clearly unfounded civil actions against plaintiff
e. Defendant grossly acted in BF in refusing to satisfy
a plainly valid claim.
f. Defendant’s acts/omissions compelled plaintiff to
litigate with third persons or incur expenses to protect
his interests

3. Nature of Action
g. Action for legal support
h. Action for recovery of wages
i. Indemnity under ECSIF and employer’s liability
j. Separate civil action to recover culpa criminal
liability

4. Equity

17
k. Any other case where the court deems it equitable

Rules in awarding attorney’s fees

- Plaintiff must clearly state basis in the complaint
- Court must state basis for the award, or else it’s null
and void.

* As fees – go to lawyer
* As damages – go to client

Attorney’s lien – If the action is for damages, can

claim a lien on the award.
- none over real property subject of litigation.

Basis of the amount – That which is stipulated in

the retainer agreement. If there is none stipulated, it
is fixed on the basis of QUANTUM MERUIT – the
reasonable worth of his services.

2. Moral Damages – To alleviate the moral suffering

the injured party has undergone by reason of the
defendant’s culpable action.

- pertains to physical, mental and moral sufferings.

(Incapable of pecuniary estimation)
- discretionary upon the court to award or not.

Recoverable are the - Breach of contract when there is

fraud, BF and wanton negligence. (due to injured
feelings)

Requisites:
18
1. Injury sustained by claimant (physical, mental or
psychological)
2. Culpable action or omission established
3. It is the proximate cause of the tortuous act (fraud
or bad faith)
4. Award of damages predicated on the following
circumstances (Rape, Murder, Homicide – moral
suffering is presumed)
5. Testimony or evidence proves the suffering caused.

Circumstances when moral damages may be

awarded

Culpa aquiliana Physical injuries

Intentional torts (Ex:
Human relations
chapter)

Culpa contractual Bad faith (except banks

– no need to prove bad
faith)
Culpa criminal Physical injuries
Lascivious acts
Adultery or
concubinage
Illegal or arbitrary
arrest
Illegal search
Defamation
Contract of Carriage Death of passenger
Fraud or bad faith
Labor Cases Bad faith
19
 Oppression against
labor

Who may recover moral damages?

Only the party who suffered. XPN: Parents of the child

seduced, abducted, raped, or abused.

Corporations are not entitled to moral damages XPN:

Libel or slander against the corporation (damage of
corporate reputation)

3. Nominal Damages – recognition of the violation of

plaintiff’s right.

In order that a right of the plaintiff, which has been

violated or invaded by the defendant, may be
vindicated or recognized. (Not for the purpose of
indemnifying the plaintiff for loss suffered.

* Nominal damages are awarded if there is absence of

proof of actual damages. It cannot co-exist with actual
damages or any other kind of damages. It always
stand alone.

Examples of violation of nominal damages:

1. Violation of due process in labor cases, although
dismissal may be valid.
2. Act of bank which merely relied on entries in a deed
of mortgage without checking or adjusting its records,
leading to prejudice to plaintiff.

20
4. Temperate Damages – there is actual pecuniary
loss which is uncertain.

These are more than nominal but less than actual.

These are awarded when the court finds some
pecuniary loss has been suffered but the amount,
from the nature of the case, cannot be established
with certainty.

Example: NAPOCOR’s construction of geothermal

plants resulted into damages to a nearby resort. There
is pecuniary loss, but it cannot be ascertained so
temperate damages were awarded.

5. Liquidated Damages – related with obligation

with penal clause and there is failure to comply with
the obligation.

Those agreed upon by the parties in a contract, in

case of breach thereof.

This cannot co-exist with actual damages. They are

mutually exclusive.

GR: Liquidated damages substitute for damages and

interest.

XPNS: 1. Stipulated otherwise.

2. Interest was not paid.
3. Fraud

6. Exemplary or Corrective Damages – enforced

by way of example.
21
Those imposed by way of example or correction for
the public good.

This is in addition to moral, temperate, liquidated or

actual damages.

What must be established first?

Claimant must first establish its right to actual, moral,

temperate or liquidated damages.

When is it awarded?

Culpa aquiliana – attended by gross negligence.

(defendant)

Culpa contractual – wanton, fraudulent, reckless,

oppressive, or malevolent manner.

Culpa criminal – attended by aggravating

circumstances. (one or more)

Mitigation of Damages

Factors that mitigate liability

Defenses:
1. Diligence of a GFF
2. Mitigating circumstances

Acts of other party:

3. Contributory negligence of the other party.
22
4. Plaintiff himself contravened terms of the contract.
5. Plaintiff derived some benefit from the contract.

Equity:
6. When defendant acted upon advice of counsel
which led to exemplary damages being awarded.
7. Loss would have resulted anyway.
8. Defendant has done his best to lessen the plaintiff’s
loss or injury since the filing of the action.

Duty of the party suffering loss or injury

Must exercise diligence of GFF to minimize damages
arising from the act or omission in question.
Doctrine of avoidable consequences
A party cannot recover damages from consequences
which the party could reasonably have avoided.

These are acts or omissions of the plaintiff after the

defendant’s act or omission (as opposed contributory
negligence, which precedes the act or omission)

Damages in case of DEATH

1. Indemnity for death (Fixed at 75,000)

2. Indemnity for loss of earning capacity

XPN: When the deceased had no earning capacity at
said time.

* IF the deceased is obliged to give support, the

recipient who is not an heir may demand support from
the accused for a period not exceeding 5 years, in a
period set by court.
23
3. Moral damages for mental anguish
(Only spouse, legitimate or illegitimate descendants
and ascendants can claim. (not brothers or sisters)

4. Exemplary damages
If crime is attended by aggravating circumstances.

5. Attorney’s fees and expenses of litigation

When a separate civil action to recover civil liability
from a crime is filed or there are exemplary damages
awarded.

6. Interest, if proper.
MISCELLANEOUS PROVISIONS

Damnum absque injuria – damage without legal

injury, no liability for damages.
- not only hurtful but wrongful.
- right of action for a legal wrong.
- wrong without damage or damage without wrong do
not constitute cause of action.

Emergency rule – confronted with emergency or

imminent danger and there is an impending danger on
the person, he is not considered negligent in
preserving his own life. (There’s a threat on his
existence, no more time for reasonable thinking)

Doctrine of last clear chance – person with last

chance of avoiding the accident is solely liable with
the consequences of the accident.

24
In relation to contributory negligence, there will be
mitigation of the damages.

Res ipsa Loquitur – extraordinary circumstance

permits an inference or raises the assumption of
negligence.
- burden of proof that there is no negligence is shifted
to the defendant (Presumption – occurs due to one’s
negligence.
- viewed as an evidentiary matter.
- the thing speaks for itself.

Attractive nuisance (magandang bwisit) –

dangerous appliance or instrumentality which attracts
children at play. One who maintains the same is liable
to child of tender years even if the child is practically a
trespasser.
Vicarious liability – render a person liable for the
negligence of others. For whose acts or omission he is
considered responsible being under his control or
supervision.

1. Parents (children)
2. Employers (Drivers) performs tasks/duties as an
employee
3. State (Special Agent)
4. Managers – must not be a mired/professional
manager. (Refers to OWNERS)
5. Teachers and heads of School of Arts and Trades

Liability ceases when the above-mentioned proved

they exercised due diligence of GFF in the selection
and supervision of employees (This defense is not
25
available in culpa contractual and culpa criminal
actions (Only in culpa aquiliana)

- The liability of the employer is PRIMARY.

26