Torts Reviewer by Israel Buhain

KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 1

TORTS and DAMAGES Tort - Unlawful violation of a private right

Private or civil wrong

Kinds of Tort Liabilities:

Intentional Torts Negligence Strict Liability

Catch all provision Article 19,20,21 NCC Purposes of Tort Law:

1. To provide peaceful means for adjusting rights of parties

2. Deter wrongful conduct 3. Encourage socially responsible

behavior 4. To restore injured parties to their

original condition

NEGLIGENCE Types of negligence:

1. Culpa Aquiliana 2. Criminal negligence 3. Culpa Contractual

Quasi Delict = Culpa Aquiliana Obligation arises from breach of duty to society as imposed by law. Article 2176 Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called quasi delict and is governed by the provisions of this chapter

Requisites of Quasi- delict

1. An act or omission constituting fault or negligence

2. Damage caused by said act or omission 3. Causal relation between the damage

and the act or omission Criminal negligence = Ex Delicto (governed by Art 365 of the RPC) Requisites:

1. The offender does or fails to do an act

2. The doing or failure is voluntary 3. It is without malice 4. The material damage results from

reckless imprudence 5. There is inexcusable lack of

precaution on the part of the offender

Contractual obligation = Culpa Contractual

Obligation arises from breach of contract. Governed by Article 1170 to 1174 of the NCC also in relation to Article 2178. (the conceptual framework of negligence is the same in contract as well as in quasi delict) Concept of Negligence Article 1173 The fault or negligence of the obligor consists in the omission of that diligence which is requires 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.


Jurisprudential definitions of negligence:

1. The doing or not doing of something that a reasonable prudent man would or would not do

2. Failure to observe for the protection of the interest of another person.

3. Want of care required by the circumstances.

4. Conduct which creates undue risk of harm to others

UNDUE RISK reasonably foreseeable risk

Extraordinary risk requires Extraordinary care

Negligence is conduct, Even if he actor believed

that he exercised proper diligence, he will still

be liable if his conduct did not correspond to

what a reasonable man would have done under

the same circumstances.

TEST OF NEGLIGENCE in the PHILIPPINES

a. Cost of precaution

b. Circumstances of the case

c. Circumstances of the statute

Circumstances to consider in determining

Negligence:

a. Time - time of the day may affect

the diligence required of the actor

b. Place - place may affect the

diligence required

c. Emergency rule an actor

confronted with an emergency is

not to be held up to the standard of

conduct normally applied.(provided

the actor did not cause the

emergency)

d. Gravity of harm to be avoided if

the circumstances poses harm,

regardless of its gravity, proper

diligence is still required.

e. Alternative Course of action the

gravity that may result if the actor

took the alternative course of

action in a given circumstance

f. Social Value or Utility of Activity

the diligence and assumption of risk

involved may vary depending on

the importance or social value of

the act.

g. Persons exposed to the risk The

character of the person exposed to

the risk is also a circumstance which

should be considered in

determining negligence.

Children- the law imposes a

higher degree of diligence over

children

STANDARD OF CONDUCT : GOOD FATHER OF

THE FAMILY reasonable conduct of a man

with an ordinary intelligence and prudence.

Child -this conduct would be subjective to a

child depending on the circumstance, in our

jurisdiction, a person under 9 years of age is

conclusively presumed to have acted without

discernment, The child, as defined in our penal

law, may only be held civilly liable.

Physically disabled persons must act in a way

that a reasonable and prudent disabled person

would do.

Expert and professional An expert should exhibit the care and skill of one ordinarily skilled in the particular field that he is in. NATURE OF ACTIVITY - is also considered in determining negligence, the nature of the act, in its default, is considered. INTOXICATION one of the circumstances to prove negligence.


INSANITY - also adjudged according to the standard test of a reasonable man STANDARD vs SPECIFIC rules Standards are flexible, context sensitive legal norms that require evaluative judgments in their application while Rules are formal and mechanical. Other factors to consider in determining negligence: VIOLATION OF STATUTES AND ORDINANCES

A. Negligence Per se negligence of the law

B. Violation gives rise to presumption in Motor Vehicle Mishaps (prima facie)Art.2184 and art.2185is done may be

PROXIMATE CAUSE is indispensable in quasi-delict cases PRACTICE and CUSTOM what usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not COMPLIANCE WITH RULES AND STATUTES One cannot avoid a charge of negligence by showing that the act or omission complained of was of itself lawful or not violative of any statute or ordinance. DEGREES of DILIGENCE:

a. Extraordinary Diligence b. Ordinary Diligence (Good father of

a family) DEGREES of NEGLIGENCE

a. Gross Negligence b. Simple Negligence

PROOF OF NEGLIGENCE the one who alleges negligence must prove the same unless the case when negligence is presumed. Presumptive Negligence:

a. RES IPSA LOQUITUR the thing speaks for itself The doctrine gives a prima facie case for plaintiff against defendant.

Requisites: 1. The accident is of a kind

which ordinarily does not occur in the absence of someones negligence.

2. It is caused by an instrumentality within the exclusive control of the defendant

3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated

b. Presumptions by the New Civil

Code: 1. Art 2184, Art 2185 and Art 2188

c. Contractual Relationship -(carrier

and passenger relationship)

AFFIRMATIVE DUTIES There is no general positive duty of care towards others, but there is a negative duty of care. MISFEASANCE breach of general duty. (being negligent is misfeasance) NONFEASANCE breach of affirmative duties.


(omission of an act that would benefit and avoid damage to others)

DUTY to RESCUE not an affirmative duty imposed by law.(Prudence over Charity)

Liability might actually reduce the number of altruistic responses by depriving people of credit for altruism. People would be deterred by threat of liability from putting themselves in a position where they might be called upon to attempt a rescue. EXECPTIONS:

a. ART 275 of the RPC (abandonment of persons in danger and abandonment of ones victim)

b. RA 4136 Land Transportation and Traffic code, Sec. 55 Duty of Driver in case of accident.

OWNERS, PROPRIETORS and POSSERSORS Duty of care or liability to:

a. Trespassers the owner does not have to take a reasonable care towards a trespassers or even protect him from concealed danger.

b. Tolerated Possessor - The owner is liable if the plaintiff is inside his property by tolerance or by implied permission.

c. Visitors the owner has a duty to

care for visitors inside his premises. d. Passengers the common carriers

owe duty of care to its passengers who stay in their premises even if they are not passengers.

CHILDREN and ATTRACTIVE NUISANCE RULE - an owner is liable if he maintains in his premises dangerous instrumentalities or appliances of a character likely to lure children in play and he fails to exerciser ordinary care to prevent children of tender age from playing therewith

or resorting thereto, even if the child is a trespasser. Example of attractive nuisance: Railway turntables, explosives, electrical conduits, smoldering fires and rickety structures. STATE OF NECESSITY The owner of a thing has

no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the interference is much greater. The owner may demand from the person benefited indemnity for the damage to him (Article 432 of the NCC)

LIABILITY TO NEIGHBORS and THIRDS PERSONS Art. 431. NCC The owner of the thing cannot make use thereof in such a manner as to injure the rights of a third person. LIABILITY OF PROPRIETORS OF BUILDINGS Art.2190. NCC The proprietor of the building or structure is responsible for the damages resulting from its partial collapse, if it should be due to the lack of necessary repairs. EMPLOYERS and EMPLOYEE The employers has a duty for the proper maintenance of the work place of its employee The employees are bound to exercise due care in the performance of their functions for the employers.


MALPRACTICE Medical Malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally under similar conditions, and in like surrounding circumstances. Elements of medical malpractice:

a. Duty b. Breach c. Injury d. Proximate Causation

Medical Negligence cases are best proved by opinions of expert belonging in the same general neighborhood and in the same general line of practice as defendant physician or surgeon. DOCTORS/GENERAL PRACTITIONERS A physician is under a duty to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. GENERAL PRACTITIONERS v. SPECIALIST General practitioners are bound to exercise due care and diligence like an average general practitioner would do in a particular situation. NATIONAL STANDARDS Each physician may with reason and fairness be expected to possess or have reasonable access to such medical knowledge as is commonly possessed or reasonably available to competent physician in the same specialty or general field of practice in the Philippines.

DOCTORS ARE NOT WARRANTORS Physicians are not warrantors of cures or insurers against personal injuries or death of the patient. Doctors are not liable to patients if proximate cause of the injury was not due to the fault of the doctor but due to other circumstances. BURDEN OF PROOF The burden of proving the negligence of the doctors rests on the plaintiff who alleges such negligence. Courts defer to the expert opinion of qualified physicians because of the courts realization that the qualified physicians possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating. RES IPSA LOQUITUR Res ipsa loquitur can also be relied upon on medical malpractice cases, though it is restricted to situations where a layman is able to say, as a matter of consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. LOST CHANCE RULE When a plaintiff prays for damages for lost chance, the essence of the plaintiffs claim is that prior to negligence, there was a chance that he would have been better off with adequate care. Because of the negligence, this chance has been lost. Loss of chance is the lost opportunity for better result. DOCTRINE OF INFORMED CONSENT The doctor must secure the consent of his patient to a particular treatment or an investigative procedure. Consent is an integral part of the physician-patient relationship and


doctors are duty bound to obtain authorization for care carried out in their offices or elsewhere. However, consent of the patient may be express or implied. Elements to be held liable to the doctrine of Informed Consent

a. The physician has a duty to disclose material risks

b. The physician failed to disclose or inadequately disclosed those risks

c. As a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to, and;

d. The plaintiff was injured by the proposed treatment

CAPTAIN OF THE SHIP DOCTRINE The doctor has the responsibility to see to it that those under him perform the task in the proper manner. The surgeon is likened to a ship captain who must not only be responsible for the safety of the crew but also of the passenger of the vessel. LIABILITY OF HOSPITALS The liability of hospitals to the acts of its doctors must first presuppose an employer-employee relationship between the doctor and hospital. DOCTRINE OF CORPORATE RESPONSIBILITY Regardless of its relationship with the doctor, the hospital may be held directly liable to the patient for its own negligence or failure to follow established standard of conduct to which it should conform as a corporation.

A hospital conducted for private gain is under a duty to exercise ordinary care in furnishing its patients a suitable and safe place. LIABILITY FOR UNLAWFUL RESTRAINT If the patient chooses to abscond or leave without the consent of the hospital may nonetheless register its protest and may choose to pursue the legal remedies available under the law, provided that the hospital may not physically detain the patient, unless the case falls under the exceptions above stated. NURSES Section 28 of RA 9173 expressly provides that a nurse must uphold the standards of safe nursing practice. The standard is national standard. Examples of negligence of nurses:

a. Medication error b. Burns of patients c. Assessment and Monitoring Errors d. Leaving Foreign Objects e. Failure to protect the patient

The hospital is vicariously liable as an employer of the nurse under Art.2180. of the NCC PHARMACISTS Pharmacists are bound to observe the highest degree of care of diligence, for their profession involves dispensing of medicines which the public safety is concerned. The doctrine of Res Ipsa Loquitur applies in negligence of pharmacists. Proof of a mistake or inadvertence upon the part of the druggist furnishes an inference sufficient to establish a prima facie case. It raises a presumption of negligence against defendant.


NEGLIGENCE of LAWYERS Prone to err like any other human being, he is not answerable to every error or mistake, and will be protected as long as he acts honestly and in good faith to the best of his skill and knowledge. Proof of Damage is Necessary ACCOUNTANT The standard required is of an ordinary accountant with skills and knowledge in the field. Proof of Damage is Necessary

NEGLIGENCE OF SELECTED BUSINESS

ORGANIZATIONS Schools and administrators The liability of schools, due to its negligence, may be based on contract or quasi-delict.

a. Based on contract The school must ensure that adequate steps are taken to maintain peace and order within the campus premises and to prevent the breakdown thereof.

b. Based on Quasi-delict In the Absence of a contract the school may be held liable as an employer under Article 2176

BANKS A Bank is under obligation to treat the accounts of its depositors with meticulous care. The stability of banks largely depends on the confidence of the people in the honesty and efficiency of banks.

FIREARMS DEALER A business dealing with dangerous weapon requires the exercise of a higher degree of care. A gun storeowner is presumed to be knowledgeable about firearms safety and should know never to keep a loaded weapon in his store to avoid unreasonable risk of harm or injury to others. SECURITY AGENCY AND GUARDS The guard and his security agency are liable for the formers negligence in handling his firearms. RESORT AND SWIMMING POOL OPERATOR The rule is well-settled that the owners of resorts to which people generally are expressly or by implication invited are legally bound to exercise ordinary care and prudence in the management and maintenance of such resorts, to the end of making them reasonably safe for visitors. THEATER Due diligence is required because it serves the public. ELECTRIC AND POWER COMPANIES Electric companies are liable for illegal disconnection of electrical lines or termination of their services without complying with legal requirements. The cases discussed hereunder involve liability for quasi-delict :

a. Burning wires b. Sagging and Dangling Lines c. Dangerous place of installation and

Uninsulated Wires


BUILDING CONTRACTORS

a. Contractual Obligations

Contractors of buildings are contractually bound to the owners of buildings that they are constructing. In relation to contractual obligation,

The New Civil Code provides a warranty against collapse of the building under Article 1723 which provides

Art. 1723 The engineer or architect

who drew up the plans and specifications for a building is liable for damages if within fifteen years from the completion of the structure, the same should collapse by reason of a defect in those plans and specifications, or due to the defects in the construction or the use of materials of inferior quality furnished by him, or due to any violation of the terms of the contract. If the engineer or architect supervises the construction, he shall be solidarily liable with the contractor.

Acceptance of the building, after completion, does not imply waiver of any of the cause of action by reason of any defect mentioned in the preceding paragraph

The action must be brought within ten hears following the collapse of the building.

b. Liability for quasi-delict to the owner

The defect in the building may be a design defect or a construction defect. The third person suffering damages may proceed only against the engineer or architect or contractor in accordance with the said article, within the period therein fixed.

The damage must be due to the negligence of the Contractor.

c. Liability to third persons

Article 1728 of the new civil code provides that the contractor is liable for all the

claims of laborers and others employed by him, and of third persons for death or physical injuries during the construction. It follows, however, that the contractor is liable for injuries that occur after the construction of the building caused b y the negligent construction of the building. Privity is dispensable. Approval of Plans by building official or City Engineer cannot prove the non-existence of defects in the construction

TOWAGE The party that provides the service in a contract of towage is required to observe the due diligence of good father of a family. STEVEDORING The party that provides this service is required to observe the due diligence of good father of a family. COMMON CARRIERS Common carriers, from the nature of their business and for the reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of passengers. The presumption is that the common carrier have been at fault or have acted negligently in case of death or injuries to passengers based on Contractual obligation. The presumption does not apply if the action is one based on quasi-delict, (passengers or third persons who may be injured thereby) The duty to exercise extraordinary diligence of common carriers is usually owed to persons with whom he has contractual relation, that is, the passenger and the shipper of goods.


TRAINS The duty of care of train operators extends not only to passenger but also to third persons. Thus, train operators must exercise due diligence not only in the performance of its contractual duties but also in the maintenance of its facilities and equipment.

DEFENSE IN NEGLIGENCE CASES

Defenses in negligence cases may either be PARTIAL or COMPLETE defense, defense that may either mitigate or bar recovery. PARTIAL DEFENSE

a. Plaintiffs own negligence Art 2179. When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded

b. Contributory Negligence

contributory negligence can reduce or mitigate the damages that the plaintiff may recover.

There is contributory negligence when the partys act showed lack of ordinary care and foresight that such act could cause harm or put his life in danger.

c. Imputed Contributory Negligence Negligence is imputed if the actor is different from the person who is being made liable.

COMPLETE DEFENSE

1. Assumption of Risk Requisites: 1. The plaintiff must know the

risk is present 2. He must further understand

its nature 3. His choice to incur it is free

and voluntary There are Express and Implied waiver of right to recover.

a. Contractual Relations There may be implied assumption of risk if the plaintiff entered into a relation with the defendant.

b. Dangerous Activities or Dangerous Condition Persons who voluntarily participate in dangerous activities or condition assume risks which are usually present in such activities or condition

c. Defendants negligence Situations wherein the plaintiff is aware of the risk created by defendants negligence.

2. Fortuitous events Article 1174 NCC Except in cases expressly provided by 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.


Elements of Fortuitous Event: a. The cause of the unforeseen and

unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will

b. It must be impossible to foresee, or if it can be foreseen it must be impossible to avoid

c. The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner

d. The obligor must be free from any participation in the aggravation of the injury resulting to the creditor.

3. PRESCRIPTION -The prescriptive period for quasi-delict is four years counted from the date of the accident.

4. INVOLUNTARINESS Defendant is not liable if force was exerted to him.

DEATH OF DEFENDANT The death of defendant will not extinguish the obligation based on quasi-delict. The case will continue through the legal representative who will substitute the deceased.

CAUSATION

PROXIMATE CAUSE

Proximate cause is defined as 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.

DISTINGUISHED FROM REMOTE CAUSE

Remote cause- that cause which some independent force merely took advantage of to

accomplish something not that natural effect thereof. A remote cause cannot be considered the legal cause of damage. Not all causes that occur before the damages can be considered proximate.

Distinguished from Nearest Cause

Proximate cause is not necessarily the nearest

cause. It is not necessarily the last link in the

chain of events but that which is the procuring

efficient and predominant cause.

Concurrent Causes

The proximate cause is not necessarily the sole

cause of the accident. The defendant is still

liable in case there are concurrent causes

brought about by acts or omissions of third

persons. The actor is not protected from liability

even if the active and substantially

simultaneous operation of the effects of a third

persons innocent, tortious or criminal act is

also a substantial factor in bringing about the

harm so long as the actors negligent conduct

actively and continuously operate to bring

about harm to another.

Art. 2194. The responsibility of two or more

persons who are liable for quasi-delict is

solidary. (n)

Plaintiffs Negligence as Concurrent Proximate

Cause

The plaintiff cannot recover if the negligence of

both the plaintiff and the defendant can be

considered the concurrent proximate cause of the

injury. This ruling on concurrent proximate cause is

consistent with Article 2179 of the New Civil Code

that provides that the plaintiff cannot recover if his


negligent act or omission is the proximate cause of

his damage or injury.

Proof of Causation

There must be proof of the causal connection

before the alleged tortfeasor may be made

liable. Possibility is not an actual fact,

probability is not certainty, and certainty

requires proof.

Tests of Proximate Cause

Quasi-delictual actions involve three

requirements:

1. negligence

2. damage

3. the causal connection between the damage

and the negligent act or omission

In other words, proof of negligence and damage is

not enough. It is still required that the plaintiff

presents proof that the proximate cause of the

damage to the plaintiff is negligent act or omission

of the defendant. It was observed that proximate

cause is determined by the facts of each case upon

mixed considerations of logic, common sense,

policy and precedent

CAUSE-IN-FACT AND POLICY TESTS

In determining the proximate cause of the

injury, it is first necessary to determine if the

defendants negligence was the cause-in-fact of

the damage to the plaintiff. If it was not a

cause-in-fact, the inquiry stops; but if it is a

cause-in-fact, the inquiry shifts to the question

of limit of liability of the defendant. The latter

determination of the extent of liability involves

a question of policy.

Holding and Rule (Cardozo Zone of Danger

rule):

A duty that is owed must be determined from

the risk that can reasonably be foreseen under

the circumstances.

A defendant owes a duty of care only to those

who are in the reasonably foreseeable zone of

danger.

Different Cause-In-Fact Tests

The initial step in determining proximate cause

is to determine if the negligent act or omission

of the defendant is the cause-in-fact of

plaintiffs damage or injury.

Under the rubric of cause-in-fact, courts

address generally the empirical question of

causal connection. It is necessary that there is

proof that the defendants conduct is a factor in

causing a plaintiffs damage. What needs to be

determined is whether the defendants act or

omission is a causally relevant factor.

SINE QUA NON TEST

The basic conception of the cause is the

alternative definition of David Hume in Inquiry

on Human Understanding. He said: Or in other

words, where if the first object had not been,

the second never had existed. This concept is

the foundation of what is known as the but-for

test.

SUBSTANTIAL FACTOR TEST

The substantial factor test makes the negligent

conduct the cause in fact of the damage if it

was a substantial factor in producing the

injuries.


In order to be a substantial factor in producing the

harm, the causes set in motion by defendant must

continue until the moment of the damage or at

least down the setting in motion of the final active

injurious force which immediately produced or

preceded the damage.

NECESSARY ELEMENT OF SUFFICIENT SET

(NESS) TEST

The NESS test is especially effective in solving

problems regarding concurrent causes. Under

this test, the negligent act or omission is a

cause-in-fact of the damage if it is a necessary

element of a sufficient set. The test is based on

the concept of causation by Hume and Mill, and

systematically elaborated for legal purposes by

Professors Hart and Honore in Causation in Law

and Professor Wright in Causation in Tort Law.

There are two ways by which co-presence may

manifest itself:

a. Duplicative causation

When two or more sets operate simultaneously

to produce the effect; the effect is over-

determined.

b. Pre-emptive causation

When, though coming about first in time, one

causal set trumps another potential set lurking

in the background; the causal potency of the

latter is frustrated.

FIRST STAGE ONLY

The first stage of causation is primarily a matter

of historical mechanics although it necessarily

involves the questions about what would have

happened in different circumstances.

Policy Tests

Foreseeability test

Negligence involves a foreseeable risk, a threatened

danger or injury and conduct unreasonable in

proportion to danger.

Natural and probable consequence test

This test is designed to limit the liability of a negligent actor by holding him responsible only for injuries which are the probable consequences of his conduct as distinguished from consequences that are merely possible. For this purpose, the term probable is used in the sense of foreseeable

Ordinary and natural or direct consequences

This test states that, as a matter of legal policy, if negligence is a cause in fact of the injury under the criteria previously discussed, the liability of the wrongdoer extends to all the injurious consequences

Hindsight test

The hindsight test eliminates foreseeability as an

element.

A party guilty of negligence or omission of duty is

responsible for all the consequences which a

prudent and experienced party, fully acquainted

with all the circumstances which in fact exist,

whether they could have been ascertained by

reasonable diligence, or not, would have thought at

the time of the negligent act as reasonably possible

to follow, if they had been suggested to his mind.


Orbit of the risk test

This was intended to be a test of duty and not a test

of proximate cause.

If the foreseeable risk to plaintiff created a duty

which the defendant breached, liability is imposed

for any resulting injury within the orbit or scope of

such injury, it is not the unusual nature of the of the

act resulting in injury to plaintiff that is the test of

foreseeability but whether the result of the act is

within the ambit of the hazards covered by the duty

imposed upon the defendant.

Tests in the Philippines

The New Civil Code has a chapter on Damages

which specifies the kind of damage for which

the defendant may be held liable and the extent

of damage to be awarded to the plaintiff.

Applicable Cause-In-Fact Test in the Philippines

- But-for Test/ Sine Qua Non Test

o Concurrent causes

o Sufficient Combined causes

- Substantial Factor Test

- Ness Test

Sine Qua Non Test Concurrent causes

Where two separate acts of negligence combine

to cause an injury to a third party, each actor is

liable.

Sufficient combined causes

Where an injury results from two separate acts of negligence, either of which would have been sufficient to cause the injury, both actors are liable

Applicable Policy Tests in the Philippines

1) Policy Test under the 1889 Civil

Code

2) Rule under the New Civil Code

Article. 2202. In crimes and quasi-delicts, the

defendant shall be liable for all the damages

which are the natural and probable

consequences of the act or omission

complained of. It is not necessary that such

damages have been foreseen or could have

reasonably been foreseen by the defendant.

The rule in contracts is different from the rule

in quasi-delict if the person sought to be held

liable ex contractu acted in good faith.

Art. 2201. In contracts and quasi-contracts, the

damages for which the obligor who acted in

good faith is liable shall be those that are the

natural and probable consequences of the

breach of the obligation, and which the parties

have foreseen or could have reasonably

foreseen at the time the obligation was

constituted.In case of fraud, bad faith, malice

or wanton attitude, the obligor shall be

responsible for all damages which may be

reasonably attributed to the non-performance

of the obligation. (1107a)

Natural and Probable under Article 2202 involves causality and adequacy Types of Dangerous Conditions

1. Those that are inherently dangerous

2. Those where a person places a thing

which is not dangerous in itself, in a

dangerous position; and

3. Those involving products and other

things which are dangerous because

they are defective.


EGG-SKULL or THIN SKULL Rule

It increases the liability of a person who may

commit a tort against another, from results

arising out of those tortuous acts.

Efficient and Intervening Cause (Novus Actus

Interviens)

An efficient intervening cause is the new and

independent act which itself is a proximate

cause of an injury and which breaks the causal

connection between the original wrong and the

injury

Medical Treatment as Intervening Cause.

A tortfeasor is liable for the consequence of

negligence, mistake, or lack of skill of a

physician or surgeon whose treatment

aggravated the original injury.

Unforeseen or Unexpected Act or Cause

An unforeseen and unexpected act of a third

person may not therefore be considered

efficient intervening cause if it is duplicative in

nature or if it merely aggravated the injury that

resulted because of a prior

Contributory Negligence

PLAINTIFFs NEGLIGENCE IS THE CAUSE

In this situation defendants act or omission is

not causally relevant; it is neither necessary nor

sufficient to cause damage or injury. This

situation may include when only the plaintiff

was negligent while the defendant is not

negligent or defendants negligence is not part

of the causal set.

COMPOUND CAUSES

In this situation, the plaintiffs negligence occurs

simultaneously with that of the defendant. The

latters negligence is equally sufficient but not

necessary for the effect because the damage

would still have resulted due to the negligence

of the plaintiff. In this case, no recovery can be

had. The plaintiffs negligence is not merely

contributory because it is concurring proximate

cause

PART OF THE SAME CAUSAL SET

In this situation, the plaintiffs negligence,

together with the defendants is part of the

same causal set. Plaintiffs negligence is not

sufficient to cause the injury while defendants

negligence is also not equally sufficient. The

effect would result only if both are present

together with normal background conditions.

The effect would not have resulted without the

concurrence of all of them.

DEFENDANTS NEGLIGENCE IS THE ONLY

CAUSE.

In this situation the defendants negligence may

be sufficient and necessary to cause the

damage and plaintiffs act or omission is neither

necessary nor sufficient. Damage to the plaintiff

was solely the result of the defendants

negligence. However, the plaintiffs negligence

may have

Doctrine of the Last Clear Chance

Alternative Views on last Clear Chance

Prevailing View

The Supreme Court ruled that even if

the plaintiff was guilty of antecedent

negligence, the defendant is still liable

because he had the last clear chance of


avoiding injury. The law is that the

person who has the last fair chance to

avoid the impending harm and fails to

do is chargeable with the

consequences

HUMAN RELATIONS: INTENTIONAL TORTS

This chapter and the next two chapters deal with torts covered by chapter 2 of the preliminary title of the new civil code of the Philippines entitled human relations. CONCEPT OF INTENT IN TORT INTENT -- the actor desires to cause the consequences of his act or believes the consequences are substantially certain to result from it. (Blacks Law Dictionary; Same def. -Section 8 of Restatement (Second) of Torts.) Represents the common usage with the ff. Elements: (1)State of mind; (2) about consequences of an act and not about the act itself, and (3) it extends not only to having in mind the purpose but also the belief that given consequences are substantially certain to result from the act. (Prosser and Keeton) MEANS EMPLOYED ACT ITSELF IS INCLUDED IN INTENT The end may not be wrongful under normal circumstances but the wrongful means employed makes it wrongful. Intentional tort likewise includes cases of this nature. Distinguished from negligence Involves foreseeablility of risk not certainty of harm; involves knowledge which is short of

substantial certainty; hence, distinction is a matter of degree. Manifestation of Intent Appears by way of malice, bad faith or fraud. Specific Content of Intent: May be content specific in some tort cases. For example, in the tort of malicious prosecution inexcusable intent to injure, vex, oppress on the part of the private prosecutor while malice in the sense of ill-will is not essential in the interference of a contract. CATCH ALL PROVISIONS: Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another shall indemnify the latter for the same. Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages. Art. 19 Abuse of Rights A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible.


The elements of an abuse of right /cause of action under Article 19 are the following (1) There is a legal right or duty; (2) Which is exercised in bad faith; (3) For the sole intent of prejudicing or injuring another. No Wrong Without A Remedy : Under Article 21, damages are recoverable even though no positive law was violated. Damage Essential Element of Cause of Action: An action can only prosper when the plaintiff suffers damage, material or otherwise. For instance, an action based on Article 19, 20 and 21 will be dismissed if the plaintiff merely seeks recognition. Good Faith Not Necessarily an Excuse: The Supreme Court ruled that the defendant may likewise be guilty of tort under Article 19 and 21 even if tortfeasor did not act with ill-will. Liability to pay exemplary damages may not be imposed on the defendant who acted in good faith. CONCEPT OF ABUSE OF RIGHT The rule allowing recovery for abuse of right is a departure from the traditional view that a person is not liable for damages resulting from the exercise of one's right-qui jure suo utitur neminem laedit. A person is protected only if he acts in legitimate exercise of his right with prudence and good faith. EXAMPLES OF CASES WHEN THERE IS ABUSE OF RIGHT. There is no rigid test that can be applied in determining whether or not the principle of abuse of rights may be invoked.

A.Abuse of Rights of Creditors Taking advantage of his knowledge that insolvency proceedings were to be instituted by the debtor if the creditors did not come to an understanding as to the manner of distribution of the insolvent's asset among them, and believing it most probable that they would not arrive at such understanding---schemed and transferred its credit to a sister company in the United States which, in turn, secured a writ of attachment in the court therein thereby gaining control over the said plane. As a consequence, the other creditors was deprived of their lawful share thereto and the assignee that was later appointed was deprived of his right to recover the plane. B. Abuse of Right of Principal There is abuse of right if the principal unreasonably terminated an agency agreement for selfish reasons. Even if the agency can be terminated at will, termination should not be done with bad faith or abuse of right. C. Abuse of Right of Agents Agents violation of the trust reposed on them as officers and negotiators in behalf of the tenants. D. Abuse of Right of Public Officers The abuse of right committed by a superior officer in preventing a subordinate from doing her assigned task from being officially recognized for it. E. Abuse of Court Processes Respondents would not have suffered the loss that engendered the suit before the RTC. Verily, his acts constituted not only an abuse of a right, but an invalid exercise of a right that had been suspended when he


received the TRO from this Court on June 4, 1986. F. Abuse of Right by Contracting Parties The agreement was for the immediate payment of the outstanding account. A check is not considered as cash especially when it is postdated sent to BPI. Thus, the issuance of the postdated check was not e f f e c t i v e p a y m e n t . B P I w a s t h e r e f o r e j u s t i f i e d i n suspending his credit card. BPI did not capriciously and arbitrarily canceled the use of the card. G. Abuse of Rights of Schools UE had a contractual obligation to inform his students a s t o w h e t h e r o r n o t t h e y h a v e m e t a l l t h e requirements for the conferment of a degree. Thus, UE in belatedly informing respondent of the result of the removal examination, particularly at a time when he had already commenced preparing for the bar exams, cannot be said to have acted in good faith. EXAMPLES OF CASES WHEN THERE IS NO ABUSE OF RIGHT Exercise of a right in good faith does not generally justify the filing of an action for damages. Even if inconvenience results, no action for damages will, as a rule, prosper. A.Absolute rights can never be the basis of liability. Example: The refusal to enter into a contract is an absolute right and courts cannot inquire into the motive in refusing to enter into a contracts. Hence, refusal to enter into a contract, bu itself, cannot be a ground for the filing of an action for damages.

B. Rights of the Corporation and its Officers and Directors The court rules that the ending of demand letters by non-stock corporation to its member for the payment unpaid charges cannot be considered abuse of right if the tenor of letters do not deviate from the standard practice of pursuing the satisfaction of the obligation of the member. The non-stock corporation, which is an exclusive organization, primarily derives its life from membership fees and charges and the corporation is expected to enforce claims against members. C. Exercise of Rights Included in Ownership There is no abuse of right when an owner of a lot that adjoins the highway fenced his property. No abuse of right was committed although the tenants in the inner lot ca no longer pass through his property. In the absence of an easement of right of way, the owner is free to enclose his property even if damage to another will result. It is a case of damage without injury. The proper exercise of a lawful right cannot constitute a legal wrong for which an action will lie, although the act may result in damage to another, for no legal right has been invaded. reasonably calculated to achieve a lawful means. D. Rights of Schools, Teachers and Administrator. There is no abuse of right if the defendants are legitimately exercising their constitutional rights. The majority of the directors of a school reinstated a teacher who was previously terminated from service. Later, the President,Vice-President, Secretary and three board members resigned because of such action.


E. Right to Sue In this case, bad faith on the part of Phelps was not p r o v e d . M o r e i m p o r t a n t l y , P h e l p s w a s d r i v e n b y legitimate reasons for rejecting Barons offer. It merely wanted to avoid a situation wherein its cash position would be compromised, making it harder for them to pay its own obligations. C l e a r l y , t h i s ( t h e r e q u e s t o f B a r o n s ) w o u l d b e inimical to the interests of any enterprise, especially a profit-oriented one like Phelps. It is plain to see that what we have here is a mere exercise of rights, not an abuse thereof. F. Contracting Parties When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible. Article 21 states that any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. Without proof of any ill-motive on her part, Ms. Lims act cannot amount to abusive conduct. The maxim Volenti Non Fit Injuria (self-inflicted injury) was upheld by the Court, that is, to which a person assents is not esteemed in law as injury, that consent to injury precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger. III- Acts Contra Bonos Mores GENERAL CONCEPT Acts Contra Bonos Mores - Harmful to the moral welfare of the society.

The Following Elements of Acts Contra Bonos Mores:

1. There is an act which is legal. 2. The act is contrary to morals, good

customs, public order, public policy, and 3. The act is done with intent to injure.

Article 19: Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, observe honesty and good faith. Article 21: Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. Note: Article 21 of the Civil Code further expands torts in this jurisdiction. And its a provision that fleshes out the principles expressed in Article 19. Broad Coverage There is no formula that can be used to determine what is contrary to morals. Neither is there any formula to establish what is good custom or what is consistent with public order or public policy. In many cases, breach is self evident especially if there is fraud, oppression, deceit, abuse of power or confidence and other human follies. Rationale Article 21 may also be justified by these words of Eugen Huber author of the Swiss Civil Code of 1907 Moral Law has in law such a penetrating and valuable significance that we cannot speak of positive law without referring to moral law. The Moral Law and the law of the State have the same object and purpose, and together they govern human aims and conduct, which constitute human society itself.


Breach Of Promise to Marry General Rule Breach of promise to marry by itself is not actionable. However it become actionable if there are additional circumstances that make it fall within the purview of article 19 20-21 or 2176 of the new civil code In such cases there is another act independent of the breach of promise to marry which gives rise to liability. These include cases where 1. There was financial damage 2. Social humiliation was caused to one of the parties. 3. Where there was moral seduction. An action is also warranted if the defendant and the plaintiff formally set the wedding and went through all the preparations and publicity but the defendant walked out of it when the matrimony was about to be solemnized. A civil case for damages may also prosper if there is seduction. Seduction may be criminal or mere moral seduction. Moral seduction although not punishable, connotes essentially the idea of deceit, enticement, superior power or abuse of confidence on the part of the seducer to which the woman has yielded. The action may prosper if the breach was done in such a manner that is clearly contrary to good morals. The acts of petitioner in forcibly abducting private respondent and having carnal knowledge with her against her will, and thereafter promising to marry her in order to escape criminal liability, only to thereafter renege on such promise after cohabiting with her for 21 days. Irremissibly constitutes acts contrary to morals and good customs. These are grossly insensate and reprehensible transgressions which indisputably warrant and abundantly justify the award of moral and exemplary damages pursuant to article 21 in

relation to paragraph 3 and 10 article 2219 and 2229 2234 of the civil code. The Supreme Court explained that the action for damages for breach of promise to marry will prosper if there is fraud Pari Delicto Rule When Inapplicable The In Pari Delicto Rule does not apply in breach of promise to marry cases where the defendant is guilty of moral seduction. Pari Delicto means equal fault; in a similar offense or crime;equal in guilt or in legal fault. Seduction and Sexual Assault Seduction by itself, without breach of promise to marry is also an act that is contrary to morals, good customs, and public policy. Desertion by a Spouse A spouse has a legal obligation to live with his or her spouse. If a spouse does not perform his or her duty to the other, he may be held liable for damages for such omission because the same is contrary to law, morals and good customs. Trespass to and / or Deprivation of Real Property trespass to real property is a tort that is committed when a person unlawfully invades the real property of another. There is authority for view however that the tort of trespass may be committed even in good faith ( Republic of the Philippines vs. Hon Jaime delos Angeles ) dissenting opinion of Chief Justice Concepcion) or / Accession continua- A person in good faith is not liable but responsible.


Trespass to Personal Property with respect to personal property, the commission of the crimes of theft or robbery is obviously trespass. In the field of tort, however, trespass extends to all cases where a person is deprived of his personal property even in the absence of criminal liability. It may also cover cases where the defendant deprived the plaintiff of personal property for the purpose of obtaining possession of a real property. Disconnection of Electricity or Gas Services A usual form of deprivation of access to property is the unjustified disconnection of electricity service. Abortion and Wrongful Death The Supreme Court recognized the right to recover damages against a physician who caused an abortion. Damages are available to both spouses if the abortion was caused through the physicians negligence. Both spouses may also recover damages if the abortion was done intentionally without their consent. Illegal DISMISSAL The sphere of application of Article 21, in relation to article 19, includes cases where there is an employer employee relationship. It is a basic rule that an employer has a right to dismiss an employee in the manner and on the grounds provided for under the Civil Code. Malicious Prosecution, Definition and Statutory Bases Malicious Prosecution

an action for damages brought by one against another whom a criminal prosecution, civil suit, or other legal proceedings has been instituted, maliciously and without probable cause, after the termination of such prosecution, suit or proceeding in favor of the defendant therein. The gist of the action is the putting of legal process in force regularly, for the mere purpose of vexation or injury. The Supreme Court ruled that an action for malicious prosecution will prosper only if the following elements are present: The fact of the prosecution and the further fact that the defendant was himself the prosecutor, and that the action was finally terminated with an acquittal; That in bringing the action, the prosecutor acted without probable cause; The prosecutor was actuated or impelled by legal malice. Malice- State of mind of one who deliberately commits a wrongful act. The prosecutor in the case is actuated by malice if he actuated by malice if he acted with Inexcusable intent to injure, oppress, vex annoy or humiliate. The presence of probable cause signifies, as a legal consequence, the absence of malice. Probable Cause is the existence of such facts and circumstances as would excite the belief of the prosecutor that the person charged is guilty of the crime for which he is prosecuted. -The absence of malice therefore involves good faith in the part of the defendant. Acquittal A criminal information is filed in court and final judgment is rendered dismissing the case against the accused.


Control by Prosecutor The mere fact that the public prosecutor took full control of litigation does not grant immunity to persons who misuse their right to instigate criminal actions. Hence, the complainant may still be liable for malicious prosecution if the public prosecutor controlled the litigation. Other Bases of Liability for Abuse of Process As an alternative to malicious prosecution, a plaintiff may file an action for damages for abuse of processes under article 2176 and 26 of the New Civil Code. Public Humiliation The Supreme court likewise sustained award for damages in cases when the plaintiff suffered humiliation through the positive acts of the defendant directed against the plaintiff.

HUMAN DIGNITY In this chapter, we will examine the torts that involve the right of a person to dignity, personality, privacy and peace of mind. Torts defined under Article 26 of the NCC is discussed in this chapter. Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and other similar acts, though they may not constitute a criminal offense shall produce a cause of action for damages, prevention and other relief:

(1) Prying into the privacy of anothers residence

(2) Meddling with or disturbing the private life or family relations of another

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.

Constitutional Right to Privacy The scope of protection of the right to privacy includes the right against unreasonable searches and seizures, privacy of communications and correspondence, right against self-incrimination, right to travel and the right to form unions not contrary to law. Reasonable Expectation of Privacy Two-part test of reasonableness:

1. Whether by his conduct, the individual has exhibited an expectation of privacy

2. Whether this expectation is one that society recognizes as reasonable

The factual circumstances of the case determine the reasonableness of the expectation. Facets of Privacy

1. Privacy in a physical sense 2. Privacy in an informational sense 3. Proprietary privacy 4. Privacy in a decisional sense

Basis of liability for Damages Viewed as a violation of a constitutional right, violation of right to privacy makes the actor liable under article 32 of the NCC Person entitled to relief Only natural persons can invoke the right to privacy and the right ceases upon the death of the person.


Standard used in determining tort liability The right to privacy is not a guaranty to hermitic seclusion. The standard to be applied in determining if there was a violation of the right is that of a person of ordinary sensibilities, relative to time and place. Classification of tort violation of the right to privacy

1. Intrusion 2. Publication of private facts 3. Making one appear before the

public in an objectionable false light 4. Commercial appropriation of

likeness of another Intrusion The tort of intrusion upon the plaintiff solitude protects a persons sense of locational and psychological privacy. Forms of intrusions

1. Intrusion in public places On public the plaintiff has no right to be alone, and it is no invasion of his privacy to do no more than follow him about.

2. Intrusion and the freedom of the press Newsworthiness in the interest of public gauged over the individuals privacy.

3. Intrusion in Administrative Investigation No intrusion when an employer investigates its employee or when a school investigates its students.

4. Intrusion of common carriers The

due diligence of common carriers in checking the baggage of its passengers should not outweigh the latters privacy.

5. Intrusion in public records No

intrusion into the right of privacy of another if the information sought is a matter of public record. Public officials are mandated by law to provide public information except if the disclosure would constitute a clearly unwarranted invasion of personal privacy.

6. Intrusion through the internet

there will be intrusion through the internet if a person is engaged in what is known as unlawful access, if the actor accessed an electronic file, electronic signature of an electronic data message or electronic document without the consent of the lawful possessor contemplated under section 31 of RA 8792.

Publication of Private Facts The interest sought to be protected is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual. Elements of this tort:

1. Publicity is given to any private or purely personal information

2. Without the latters consent 3. Regardless of whether or not such

publicity constitute a criminal offense.

Publication of Public acts is also gauged in its Newsworthiness that concerns public interest over the right to privacy of the individual especially a public figure.


False Light The interest to be protected in this tort is the interest of the individual in not being made to appear before the public in an objectionable false light or false position. The media may commit the tort by distorting new reports. Thus, liability may result if film or videotape is edited in such a way that the plaintiff is made to appear to have committed an illegal act although he actually did not do so. Commercial Appropriation of Likeness The tort of commercial appropriation of likeness has been held to protect various aspects of an individuals identity from commercial exploitation: name, likeness, achievements, identifying characteristics, actual performances and fictitious characters created by a performer. It was even extended in one case to phrases and other things which are associated with an individual. INTERFERENCE WITH FAMILY AND OTHER RELATIONS Alienation of Affection of spouse wrongful interference in the family affairs of whereby one spouse is induced to leave the other spouse or to conduct himself or herself that the comfort of married life is destroyed. Requirements:

1. A valid marriage 2. Wrongful conduct by the defendant

with the plaintiffs spouse 3. The loss of affection or consortium 4. A causal relation between

defendants conduct and the deprivation of affection.

When the alienation was caused by in-laws, there is a presumption that the interference of the in-laws are in the interest of the child. In such a case. Malice must be established, and it

must appear that the defendants acts were the controlling cause of the loss of affection. The requirement of malice also applies to interference of Non-relatives. VEXATION and HUMILIATION The fourth paragraph of Article 26 of the NCC provides:

4. Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.

Extreme and Outrageous Conduct Conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society. Emotional Distress Any highly unpleasant mental reaction such as extreme grief, shame, humiliation, embarrassment, anger, disappointment, worry, nausea, mental suffering and anguish. Any party seeking recovery for mental anguish must prove more than mere worry, anxiety, vexation, embarrassment, or anger. Distinguished from Defamation Emotional distress properly belongs to the reactive harm principle while defamation calls for the application of the relational harm principle. The principle of relational harm includes harm to social relationships in the community in the form of defamation as distinguished from the principle of reactive


harm which includes injuries to individual emotional tranquility. DISCRIMINATION Public policy abhors discrimination. Art.135 of the Labor code Art. 135. Discrimination Prohibited. It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex

Discriminations of disabled and women RA 7277 Magna Carta for disabled persons RA 9710 Magna Carta for Women. SEXUAL HARRASMENT Another act that merits impositions of damages for being contrary to law and morals is sexual harassment. Sexual harassment is committed whenever any of the persons mentioned in paragraph (a) above demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demands, request or requirement for submission is accepted by the object of said act QUID PRO QUO CASES Sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships or the payment of a stipend, allowance or other benefits, privileges or considerations. HOSTILE ENVIRONMENT CASES Requisites:

1. That he or she was subjected to sexual advances, requests for

sexual favors, or other verbal or physical conduct of sexual nature

2. That this conduct was unwelcome

3. The conduct was sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment.

The Standard of Conduct to be observed is of an ordinary prudent man. The civil liability is based on delict.

INDEPENDENT CIVIL ACTION

A private action for damages brought by an offended party arising from culpa aquillana for the enforcement of his right in relation to Article 32,33 and 34 of the NCC. When a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party reserves his right to institute it separately; and after a criminal action has been commenced, no civil action arising from the same offense can be prosecuted. Articles 32,33 and 34 of the New Civil Code commonly provide for the authority to file independent civil actions, this includes actions for damages for violation of civil and political rights, defamation, fraud, physical injuries and neglect of public officers. Article 32.Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:


(1)Freedom of religion; (2)Freedom of speech; (3)Freedom to write for the press or to maintain a periodical publication; (4)Freedom from arbitrary or illegal detention; (5)Freedom of suffrage; (6)The right against deprivation of property without due process of law; (7)The right to a just compensation when private property is taken for public use; (8)The right to the equal protection of the laws; (9)The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (10)The liberty of abode and of changing the same; (11)The privacy of communication and correspondence; (12)The right to become a member of associations or societies for purposes not contrary to law; (13)The right to take part in a peaceable assembly to petition the Government for redress of grievances; (14)The right to be a free from involuntary servitude in any form; (15)The right of the accused against excessive bail; (16)The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (18)Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a

statute which has not been judicially declared unconstitutional; and (19)Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. Article 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. Article 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action


CIVIL LIABILITY ARISING FROM DELICT

Basic rule in this jurisdiction is that every person criminally liable for a felony is also civilly liable. Civil liability arising from delict can only prosper when the act or omission is punishable by law and it causes damage to another. Public and Private offenses not material, as in the case of bigamy, a public offense. PERSONS LIABLE:

1. Principal 2. Accomplice 3. Accessory

The amount of damages to be awarded must be apportioned according to their respective responsibilities to be paid by them solidarily within their respective class and subsidiarily for the others of a different class. Order of preference:

1 Principals 2 Accomplice 3 Accessory

CIVIL LIABILITY ARISING FROM CRIMES INCLUDES: RESTITUTION REPARATION INDEMNIFICATION As provided for by Article 100 of the Revised Penal Code. PROXIMATE CAUSE Article 2202 of the NCC provides that in crimes and quasi-delicts the defendant shall be liable for all the natural and probable consequences of the act or omission complained of.

Circumstances to be considered in awarding damages Justifying no crime committed but there is civil liability. Except in subdivision 4 of Article 11 of the RPC Exempting there is crime committed but the offender is exempted from punishment, but shall be civilly liable, and if the offender is under guardianship or minor the guardian or parents shall be liable for damages unless they can prove they observed due diligence. Mitigating the courts may lower the amount considering this circumstance. Aggravating - the courts may increase the amount considering this circumstance. This circumstance warrants the imposition of exemplary damages. Alternative the courts shall determine the amount of damages on a case to case basis. EXTINCTION AND SURVIVAL OF CIVIL LIABILITY Death of the accused BEFORE final judgment extinguishes the criminal and civil liability of the accused, this is without prejudice to the right of the aggrieved party to file a claim for damages against other sources of obligation other than delict. Civil liability is not extinguished by death of the accused AFTER final judgment. INDEPENDENT CIVIL ACTION ARISING FROM CRIMES If an accused is acquitted based on reasonable doubt on his guilt, his civil liability arising from crime may be proved by preponderance of evidence only. However if the accused is acquitted on the basis that he was not the author of the act or omission complained of, or there is a declaration in the final judgment that


that the fact which the civil liability might arise did not exist. RESERVATION OF CIVIL ACTION A civil action arising from crime is deemed instituted in the criminal action, unless the offended party reserves the right to institute a separate civil action before the prosecution presents its evidence. (Section 1. Rule 111 of the Rules of Court) PREJUDICIAL QUESTION A matter that may suspend the civil action that is deemed instituted with the criminal case is the presence of prejudicial question. Section 6 of Rule 111 of the Revised Rules of Criminal Procedure. Elements of prejudicial question: (Sec.7 Rule 111, Rules of court) a. Previously instituted civil action involves an

issue similar or intimately related to the issue raised in the criminal action

b. resolution of such issue determines whether or not the criminal action may proceed

Article 36 of the NCC provides that Prejudicial Questions, which must be decided before any criminal prosecution may be instituted or may proceed, shall be governed by the rules of court which the Supreme Court shall promulgate and which shall not be in conflict with the provisions of this code.

The DEFENDANTS

This chapter deals with persons who may be

sued for tort, particularly those who may be

held liable for quasi-delict under article 2176 of

the New Civil Code which states that:

Art.2176 Whoever by act or omission causes

damage to another, there being no 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.

JOINT TORTFEASOR

Article 2194 of the New Civil Code

governs the acts or omissions of different

persons which is the proximate cause of an

injury, Article 2194 states that:

Art.2194. The responsibility of two or ore

persons who are liable for quasi-delict is

solidary

Article 2194 imposes a solidary obligation for

the damages caused by joint tortfeasors.

A Solidary obligation means that each one of

the debtor is bound for the compliance of the

whole obligation.

In quasi-delict, Each wrongdoer is responsible

for the entire result and is liable as though his

acts were the sole cause of the injury

Who can be considered Joint Tortfeasor?

a. Joint tortfeasor by cooperation

Defendants may be considered joint

tortfeasor if they cooperated in bringing

about a result. Such cooperation may

be by virtue of a written agreement.

b. CAUSAL SET in torts, it as the

concurrence of two or more acts or

omissions that is sufficient produce the

injury, or without the other, the injury

would not have occurred.


Part of Causal Set Defendants may

likewise be considered joint tortfeasor

if each of their acts or omissions are

part of causal set that is sufficient to

cause the damage to the plaintiff.

Separate Causal Set Persons may be

considered joint-tortfeasor even if they

acted separately or independently. For

example if the proximate cause of the

injury are two causal sets, which are

separately sufficient to cause the injury,

both actors are liable.

REIMBURSEMENT AND APPORTIONMENT OF

LIABILITY

The joint tortfeasor owe solidary liability to the

injured party. As against the in injured party,

one of the joint tortfeasor cannot claim his

contribution is smaller than the contribution of

the other jointfeasor. No apportionment will be

made because one tortfeasor may be held liable

for the entire obligation. The damages cannot

be apportioned among them, except among

themselves

Full Payment made by one solidary debtor

extinguishes the whole obligation, and the

latter can reimburse to his co-debtor the share

which corresponds to each, with the interest for

the payment already made, pursuant to Article

1217 of the New Civil Code, likewise the

insolvency of one of the joint tortfeasor shall be

borne by other joint tortfeasor. Thus a joint

tortfeasor who paid the entire amount of

damages being claimed has the right to claim

reimbursement from the other tortfeasor.

One area of the law that apportions liability

among tortfeasor is the liability of banks for

forged signature in checks. Generally, it is the

collecting bank that must bear the loss because

of its warranty of the genuineness of the

signature of the indorser.

MOTOR VEHICLE MISHAPS

Article 2184. In motor vehicle mishaps, the

owner is solidary liable with his driver, if the

former, who was in the vehicle, could have, by

the use of the due diligence, prevented the

misfortune.

Solidary liability is imposed on the owner of the

vehicle not because of his imputed liability but

because his own omission is a concurring

proximate cause of the injury.The theory is that

ultimately the negligence of the servant, if

known to the master and susceptible of timely

correction by him, reflects his own negligence if

he fails to correct it in order to prevent injury or

damage.

VICARIOUS LIABILITY

There is vicarious liability where a person is not

only liable for torts committed by himself, but

also for torts committed by others with whom

he has a certain relationship and for whom he is

responsible.

Article 2180 to 2182 of the New Civil Code

provides the central determination of vicarious

liability.

Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is 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 their company.


Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. 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. 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. 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. 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. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (1903a) Art. 2181. Whoever pays for the damage caused by his dependents or employees may recover from the latter what he has paid or delivered in satisfaction of the claim. (1904) Art. 2182. If the minor or insane person causing damage has no parents or guardian, the minor or insane person shall be answerable with his own property in an action against him where a guardian ad litem shall be appointed. (n)

The Revised Penal Code also provides vicarious

liability arising from delict

Art. 101. Rules regarding civil liability in certain cases. The exemption from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Article 11 of this Code does not include exemption from civil liability, which shall be enforced subject to the following rules:

First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for acts committed by an imbecile or insane person, and by a person under nine years of age, or by one over nine but under fifteen years of age, who has acted without discernment, shall devolve upon those having such person under their legal authority or control, unless it appears that there was no fault or negligence on their part.

Should there be no person having such insane, imbecile or minor under his authority, legal guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting property exempt from execution, in accordance with the civil law.

Second. In cases falling within subdivision 4 of Article 11, the persons for whose benefit the harm has been prevented shall be civilly liable in proportion to the benefit which they may have received.

The courts shall determine, in sound discretion, the proportionate amount for which each one shall be liable.

When the respective shares cannot be equitably determined, even approximately, or when the liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events, whenever the damages have been caused with the consent of the authorities or their agents,


indemnification shall be made in the manner prescribed by special laws or regulations.

Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons using violence or causing the fears shall be primarily liable and secondarily, or, if there be no such persons, those doing the act shall be liable, saving always to the latter that part of their property exempt from execution.

Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of establishments. In default of the persons criminally liable, innkeepers, tavernkeepers, and any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees.

Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their houses from guests lodging therein, or for the payment of the value thereof, provided that such guests shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods within the inn; and shall furthermore have followed the directions which such innkeeper or his representative may have given them with respect to the care and vigilance over such goods. No liability shall attach in case of robbery with violence against or intimidation of persons unless committed by the innkeeper's employees.

Art. 103. Subsidiary civil liability of other persons. The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties.

LIABILITY of PARENTS to their unemancipated

child

2nd paragraph of Article 2180 of the New Civil

Code, is now modified by Article 221 of the

Family Code, which imposes responsibility to

both parents without preference to the father.

The liability is based on the parental authority

of the parents over their minor children. The

age of majority under RA 6809 which amended

Article 234 of the Family Code by making 18

years as the uniform majority age for men and

women.

The last paragraph of Article 236 of the Family

Code states that Nothing in this code shall be

construed to derogate from the duty or

responsibility of parents and guardians for

children and wards below twenty-one years of

age mentioned in the second and third

paragraphs of Article 2180

It is resolved to mean that liability of parents

subsist up until the child is 21 years old.

Civil liabili

Date post:	13-Oct-2015
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