You are on page 1of 2

ART.

34: NEGLECT OF DUTY On the city or municipal level, the protection of life and
property ay reasonably be said to be the basic function
Article 34 of the Civil Code provides that: of government, and the main justification for the
existence and maintenance of its police force. For this
“When a member of a city or municipal police force reason, members of the city’s or municipality’s police
refuses or fails to render aid or protection to any person force are held directly and personally liable for damages
in case of danger to life or property, such peace officer caused by their refusal or failure to render this basic
shall be primarily liable for damages and the city or service. Although such non-feasance may also
municipality shall be subsidiarily responsible therefor.” constitute a criminal dereliction of duty, the individual
The provision likewise states that the civil action shall prejudiced thereby may leave the matter of prosecuting
be independent of any criminal proceedings and a the derelict entirely to the state, and proceed directly to
preponderance of evidence shall suffice to support such the vindication of his private right, independently of said
action. criminal prosecution and regardless of its result. To
establish a case for damages for such non-feasance, a
Article 34 is intended to afford a remedy against police preponderance of evidence in support thereof is
officers “who connive with bad elements, are afraid of sufficient.
them or are simply indifferent to duty.” (1 Capistrano
38). Since the policeman is usually insolvent, the law secures
the payment of damages occasioned by his dereliction
The liability of policeman was explained by Judge of duty by holding the city or municipality subsidiarily
Jarencio (Jarencio, Torts and Damages, 1983 Ed., liable therefor. The subsidiary liability of the city or
p. 205) in this manner: municipality under this article is clearly an exception to
its non-suability as a political subdivision of the state,
“The policeman is the government official to whom the for the crimes or torts of its employees.
common man usually turns for protection when his life
or property is threatened with danger. To him the
policeman is the external symbol of government’s power Key elements of a civil action for damages under art.
and authority. Thus, it is the primary duty of city and 34:
municipal policemen not only to preserve and maintain
peace and order but also to render aid and protection to 1. The defendant is a member of the city or
life and property in their jurisdictions. municipal police force
2. The plaintiff either sought police assistance or
If policemen refuse or fail to render aid and protection protection against danger to life or property, or
to any person whose life or property is in the defendant was aware of plaintiff’s need of
danger, they are unfaithful to their duty and Art. 34 of such assistance or protection, but the latter
the Civil Code properly grants to the person damaged, refused or failed to render the same
a right of action against a failing policeman. 3. As a consequence of such refusal or failure to
render such assistance or protection, the
On the other hand, the subsidiary liability of cities and plaintiff suffered damages claimed
municipalities, is imposed so that they will exercise 4. The civil action for such claims may be brought
great care in selecting conscientious and duly qualified directly against the derelict policeman who is
policeman and exercise supervision over them in the primarily and personally liable for said damages
performance of their duties as peace officers. (Jarencio, 5. Such civil action for damages may be instituted
ibid.; 1 Capistrano 38). independently of the institution or pendency of
any criminal proceedings arising from the same
+++++++++++++++++++++ dereliction and regardless of the result thereof,
and may be proved by preponderance of
evidence.
MEMBERS OF POLICE FORCE

It is the duty of police officers to see to it that peace and If the defendant policeman is unable to satisfy the
order are maintained in the community. Hence, should judgment of indemnity rendered against him, or any
a citizen go to them to seek assistance, their failure or part thereof, the city or municipality shall be subsidiarily
refusal to render the needed assistance to maintain liable for said damages.
lawful order can be a basis for claiming damages against
them. The city or municipality shall be subsidiarily ++++++++++++++++++
responsible therefore.
Who is liable for damages?
++++++++++++++++++
The member of the police force who refuses or fails to
render aid or protection is primarily liable for damages.
The city or municipality concerned is subsidiarily liable
in case of insolvency of said police officer.

DEFENSE OF DILIGENCE OF A GOOD FATHER OF A


FAMILY

The defense of having observed the diligence of a good


father of a family to prevent the damage is not available
to the city or municipality. The situation is difference
from the liability of the state for quasi-delicts of its
employees under article 2180 of NCC, where the
defense of diligence of a good father of a family is
allowed.

BASIS OF SUBSIDIARY LIABILITY

Subsidiary liability is provided in order that the city or


municipality concerned will be careful in the selection of
the members of the police force. Recent events and
newspaper stories about policemen who are involved in
heinous crimes and criminal syndicates are more than
sufficient justifications for city or municipal
governments to exercise great care in the hiring of
policemen.

You might also like