1

I.

Vicarious Liability/Imputed Liability

Civil Code

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.
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.
Family Code
Art. 221. Parents and other persons exercising parental authority shall be civilly liable for
the injuries and damages caused by the acts or omissions of their unemancipated children
living in their company and under their parental authority subject to the appropriate
defenses provided by law.
Art. 218. The school, its administrators and teachers, or the individual, entity or institution
engaged in child are shall have special parental authority and responsibility over the minor
child while under their supervision, instruction or custody.
Authority and responsibility shall apply to all authorized activities whether inside or outside
the premises of the school, entity or institution.

Rules of Court
RULE 92 Section 2. Meaning of word "incompetent." Under this rule, the word
"incompetent" includes persons suffering the penalty of civil interdiction or who are
hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who

are of unsound mind, even though they have lucid intervals, and persons not being of
unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot,
without outside aid, take care of themselves and manage their property, becoming thereby
an easy prey for deceit and exploitation.
Note: Republic Act No. 6809 AN ACT LOWERING THE AGE OF MAJORITY FROM TWENTY-ONE
TO EIGHTEEN YEARS
(December 13, 1989) Section 3. Article 236 of the same Code is also hereby amended to read as
follows:
"Art. 236. Emancipation shall terminate parental authority over the person and property of the child
who shall then be qualified and responsible for all acts of civil life, save the exceptions established by
existing laws in special cases.
"Contracting marriage shall require parental consent until the age of twenty-one.
"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 of the Civil Code."

The Basis of Vicarious Liability is not Respondeat Superior

Respondeat Superior means the negligence of the servant is conclusively the negligence
of the master.

The Basis of Vicarious Liability is Pater Familias

Pater Familias - The reason for the masters liability is negligence in the supervision

of his subordinates
Juris Tantum
Rebuttable presumption negligence is imputed to them by law, unless they prove the
contrary.
Nature of Liability of Vicarious obligor
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Primary, Direct and not subsidiary. Solidarily liably with the tortfeasor. His
responsibility is not conditioned upon the insolvency of or prior recourse against the
negligent tortfeasor.

Judicially Adopted Children are considered legitimate children of their adopting

parents thus they may be held vicariously Liable
Extra-judicial adoption though not creating any legal relation makes the foster
parent vicariously liable under article 2180 (2) by analagoy
Illegitimate Children
-

If acknowledge by the father, FATHER is vicariously liable.

If not, but is under the custody and supervision of the mother, the Mother is Liable.

2180 applies to damages arising from delicts.

Exception to article 2180

Art. 1759. Common carriers are liable for the death of or injuries to passengers through
the negligence or wilful acts of the former's employees, although such employees may have

acted beyond the scope of their authority or in violation of the orders of the common
carriers.
This liability of the common carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employees.
2180 (3)(4) employer must derived some special benefits.

Libi vs IAC
Doctrine: CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL LIABILITY ARISING
FROM CRIMINAL OFFENSES COMMITTED BY THEIR MINOR CHILDREN; RULE. The parents
are and should be held primarily liable for the civil liability arising from criminal offenses
committed by their minor children under their legal authority or control, or who live in their
company, unless it is proven that the former acted with the diligence of a good father of a
family to prevent such damages. That primary liability is premised on the provisions of
Article 101 of the Revised Penal Code with respect to damages ex delicto caused by their
children 9 years of age or under, or over 9 but under 15 years of age who acted without
discernment; and, with regard to their children over 9 but under 15 years of age who acted
with discernment, or 15 years or over but under 21 years of age, such primary liability shall
be imposed pursuant to Article 2180 of the Civil Code. Under said Article 2180, the
enforcement of such liability shall be effected against the father and, in case of his death or
incapacity, the mother. This was amplified by the Child and Youth Welfare Code which
provides that the same shall devolve upon the father and, in case of his death or incapacity,
upon the mother or, in case of her death or incapacity, upon the guardian, but the liability
may also be voluntarily assumed by a relative or family friend of the youthful offender.
However, under the Family Code, this civil liability is now, without such alternative
qualification, the responsibility of the parents and those who exercise parental authority over
the minor offender. For civil liability arising from quasi-delicts committed by minors, the
same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so
modified.
Facts: For more than two (2) years before their deaths, Julie Ann Gotiong and

Wendell Libi were sweethearts until December, 1978 when Julie Ann broke up her
relationship with Wendell after she supposedly found him to be sadistic and
irresponsible. During the first and second weeks of January, 1979, Wendell kept
pestering Julie Ann with demands for reconciliation but the latter persisted in her
refusal, prompting the former to resort to threats against her. In order to avoid him,
Julie Ann stayed in the house of her best friend, Malou Alfonso, at the corner of
Maria Cristina and Juana Osmea Streets, Cebu City, from January 7 to 13, 1978.
On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound
inflicted with the same firearm, a Smith and Wesson revolver licensed in the name
of petitioner Cresencio Libi, which was recovered from the scene of the crime inside
the residence of private respondents
Petitioners argument: Petitioners, puzzled and likewise distressed over the death

of their son, rejected the imputation and contended that an unknown third party,
whom Wendell may have displeased or antagonized by reason of his work as a
narcotics informer of the Constabulary Anti-Narcotics Unit (CANU), must have
caused Wendells death and then shot Julie Ann to eliminate any witness and
thereby avoid identification.
chanrobles.com:cralaw:r

Respondents argument: Private respondents, bereaved over the death of their

daughter, submitted that Wendell caused her death by shooting her with the
aforesaid firearm and, thereafter, turning the gun on himself to commit suicide.
Issue: WoN respondents are vicariously liable for the act committed by their son Wendell
libi
Held: In the case at bar, whether the death of the hapless Julie Ann Gotiong was

caused by a felony or a quasi-delict committed by Wendell Libi, respondent court

did not err in holding petitioners liable for damages arising therefrom. Subject to the
preceding modifications of the premises relied upon by it therefor and on the bases
of the legal imperatives herein explained, we conjoin in its findings that said
petitioners failed to duly exercise the requisite diligentissimi patris familias to
prevent such damages.
Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio
Libi, owns a gun which he kept in a safety deposit box inside a drawer in their
bedroom. Each of these petitioners holds a key to the safety deposit box and
Amelitas key is always in her bag, all of which facts were known to Wendell. They
have never seen their son Wendell taking or using the gun. She admitted, however,
that on that fateful night the gun was no longer in the safety deposit box. 16 We,
accordingly, cannot but entertain serious doubts that petitioner spouses had really
been exercising the diligence of a good father of a family by safely locking the fatal
gun away. Wendell could not have gotten hold thereof unless one of the keys to the
safety deposit box was negligently left lying around or he had free access to the bag
of his mother where the other key was.
The diligence of a good father of a family required by law in a parent and child
relationship consists, to a large extent, of the instruction and supervision of the
child.
Note: The subsidiary liability of parents for damages caused by their minor children
imposed by Article 2180 of the New Civil Code covers obligations arising from both
quasi-delicts and criminal offenses
The subsidiary liability of parents arising from the criminal acts of their minor
children who acted with discernment is determined under the provisions of Article
2180, N.C.C. and under Article 101 of the Revised Penal Code, because to hold that
the former only covers obligations which arise from quasi-delicts and not obligations
which arise from criminal offenses, would result in the absurdity that while for an
act where mere negligence intervenes the father or mother may stand subsidiarily
liable for the damages caused by his or her son, no liability would attach if the
damage is caused with criminal intent.
We believe that the civil liability of parents for quasi-delicts of their minor
children, as contemplated in Article 2180 of the Civil Code, is primary and
not subsidiary. In fact, if we apply Article 2194 of said code which provides for
solidary liability of joint tortfeasors, the persons responsible for the act or omission,
in this case the minor and the father and, in case of his death of incapacity, the
mother, are solidarily liable. Accordingly, such parental liability is primary and not
subsidiary, hence the last paragraph of Article 2180 provides that" (t)he
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 damages.
Made to answer with their own property
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)
Civil liability arising from felonies committed by minor children (Article
101 of the RPC)
We are also persuaded that the liability of the parents for felonies committed by
their minor children is likewise primary, not subsidiary.
In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts
committed 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." (Emphasis supplied.) 21
Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing
provision the civil liability of the parents for crimes committed by their minor
children is likewise direct and primary, and also subject to the defense of lack of
fault or negligence on their part, that is, the exercise of the diligence of a good
father of a family.
Made to answer with their own property
"Should there be no person having such . . . minor under his authority, legal
guardianship or control, or if such person be insolvent, said . . . minor shall respond
with (his) own property, excepting property exempt from execution, in accordance
with civil law."
BASIS
That primary liability is premised on the provisions of Article 101 of the Revised
Penal Code with respect to damages ex delicto caused by their children 9 years of
age or under, or over 9 but under 15 years of age who acted without discernment;
and, with regard to their children over 9 but under 15 years of age who acted with
discernment, or 15 years or over but under 21 years of age, such primary liability
shall be imposed pursuant to Article 2180 of the Civil Code.
Calang vs People
Doctrine: Articles 2176 and 2180 of the Civil Code pertain to the vicarious liability of an
employer for quasi-delicts that an employee has committed. Such provision of law does not
apply to civil liability arising from delict.
Facts: At around 2:00 p.m. of April 22, 1989, Rolito Calang was driving Philtranco Bus No.
7001, owned by Philtranco along Daang Maharlika Highway in Barangay Lambao, Sta.
Margarita, Samar when its rear left side hit the front left portion of a Sarao jeep coming from
the opposite direction. As a result of the collision, Cresencio Pinohermoso, the jeeps driver,
lost control of the vehicle, and bumped and killed Jose Mabansag, a bystander who was

standing along the highways shoulder. The jeep turned turtle three (3) times before finally
stopping at about 25 meters from the point of impact. Two of the jeeps passengers, Armando
Nablo and an unidentified woman, were instantly killed, while the other passengers
sustained serious physical injuries.
The prosecution charged Calang with multiple homicide, multiple serious physical
injuries and damage to property thru reckless imprudence before the Regional Trial Court
(RTC), Branch 31, Calbayog City. The RTC, in its decision dated May 21, 2001, found Calang
guilty beyond reasonable doubt of reckless imprudence resulting to multiple homicide,
multiple physical injuries and damage to property, and sentenced him to suffer an
indeterminate penalty of thirty days of arresto menor, as minimum, to four years and two
months of prision correccional, as maximum. The RTC ordered Calang and Philtranco, jointly
and severally, to pay P50,000.00 as death indemnity to the heirs of Armando; P50,000.00 as
death indemnity to the heirs of Mabansag; and P90,083.93 as actual damages to the private
complainants.
The petitioners appealed the RTC decision to the Court of Appeals (CA), docketed as CA-G.R.
CR No. 25522. The CA, in its decision dated November 20, 2009, affirmed the RTC decision in
toto. The CA ruled that petitioner Calang failed to exercise due care and precaution in
driving the Philtranco bus. According to the CA, various eyewitnesses testified that the bus
was traveling fast and encroached into the opposite lane when it evaded a pushcart that
was on the side of the road. In addition, he failed to slacken his speed, despite admitting
that he had already seen the jeep coming from the opposite direction when it was still half a
kilometer away. The CA further ruled that Calang demonstrated a reckless attitude when he
drove the bus, despite knowing that it was suffering from loose compression, hence, not
roadworthy.
The CA added that the RTC correctly held Philtranco jointly and severally liable with
petitioner Calang, for failing to prove that it had exercised the diligence of a good father of
the family to prevent the accident.
Petitioners argument: In the present motion for reconsideration, the petitioners claim
that there was no basis to hold Philtranco jointly and severally liable with Calang because
the former was not a party in the criminal case (for multiple homicide with multiple serious
physical injuries and damage to property thru reckless imprudence) before the RTC.
The petitioners likewise maintain that the courts below overlooked several relevant facts,
supported by documentary exhibits, which, if considered, would have shown that Calang was
not negligent, such as the affidavit and testimony of witness Celestina Cabriga; the
testimony of witness Rodrigo Bocaycay; the traffic accident sketch and report; and the
jeepneys registration receipt. The petitioners also insist that the jeeps driver had the last
clear chance to avoid the collision.
Issue: WoN the employer is jointly and severally liable with its employee with respect to
civil liability arising from delict
Held: We, however, hold that the RTC and the CA both erred in holding Philtranco jointly and
severally liable with Calang. We emphasize that Calang was charged criminally before the
RTC. Undisputedly, Philtranco was not a direct party in this case. Since the cause of action
against Calang was based on delict, both the RTC and the CA erred in holding Philtranco
jointly and severally liable with Calang, based on quasi-delict under Articles 2176 and 2180
of the Civil Code.
Articles 2176 and 2180 of the Civil Code pertain to the vicarious liability of an employer for
quasi-delicts that an employee has committed. Such provision of law does not apply to civil
liability arising from delict.
Note:

If at all, Philtrancos liability may only be subsidiary. Article 102 of the Revised Penal Code
states the subsidiary civil liabilities of innkeepers, tavernkeepers and proprietors of
establishments, as follows:
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
regulations shall have been committed by them or their employees.
Innkeepers are also subsidiary 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 of and vigilance over such goods. No liability shall attach in
case of robbery with violence against or intimidation of persons unless committed by the
innkeepers employees.
The foregoing subsidiary liability applies to employers, according to Article 103 of the
Revised Penal Code, which reads:
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.
The provisions of the Revised Penal Code on subsidiary liability Articles 102 and 103 are
deemed written into the judgments in cases to which they are applicable. Thus, in the
dispositive portion of its decision, the trial court need not expressly pronounce the
subsidiary liability of the employer. Nonetheless, before the employers subsidiary liability is
enforced, adequate evidence must exist establishing that (1) they are indeed the employers
of the convicted employees; (2) they are engaged in some kind of industry; (3) the crime
was committed by the employees in the discharge of their duties; and (4) the execution
against the latter has not been satisfied due to insolvency. The determination of these
conditions may be done in the same criminal action in which the employees liability, criminal
and civil, has been pronounced, in a hearing set for that precise purpose, with due notice to
the employer, as part of the proceedings for the execution of the judgment.

Spouses Viloria vs Continental Airlines

Doctrine: An examination of this Courts pronouncements in China Air Lines will

reveal that an airline company is not completely exonerated from any liability for
the tort committed by its agents employees. A prior determination of the nature of
the passengers cause of action is necessary.
If the passengers cause of action against the airline company is premised on culpa
aquiliana or quasi-delict for a tort committed by the employee of the
airline companys agent, there must be an independent showing that the
airline company was at fault or negligent or has contributed to the
negligence or tortuous conduct committed by the employee of its agent.

The mere fact that the employee of the airline companys agent has committed a
tort is not sufficient to hold the airline company liable.
There is no vinculum juris between the airline company and its agents employees
and the contractual relationship between the airline company and its agent does
not operate to create a juridical tie between the airline company and its agents
employees.
Article 2180 of the Civil Code does not make the principal vicariously
liable for the tort committed by its agents employees and the principalagency relationship per se does not make the principal a party to such
tort; hence, the need to prove the principals own fault or negligence.
On the other hand, if the passengers cause of action for damages against the
airline company is based on contractual breach or culpa contractual, it is not
necessary that there be evidence of the airline companys fault or negligence. As
this Court previously stated in China Air Lines and reiterated in Air France vs.
Gillego,24 in an action based on a breach of contract of carriage, the aggrieved
party does not have to prove that the common carrier was at fault or was negligent.
All that he has to prove is the existence of the contract and the fact of its nonperformance by the carrier.
Facts: On April 3, 2006, the Regional Trial Court of Antipolo City, Branch 74 (RTC) rendered a
Decision, giving due course to the complaint for sum of money and damages filed by
petitioners Fernando Viloria (Fernando) and Lourdes Viloria (Lourdes), collectively called
Spouses Viloria, against respondent Continental Airlines, Inc. (CAI). As culled from the
records, below are the facts giving rise to such complaint.
On or about July 21, 1997 and while in the United States, Fernando purchased for
himself and his wife, Lourdes, two (2) round trip airline tickets from San Diego, California to
Newark, New Jersey on board Continental Airlines. Fernando purchased the tickets at
US$400.00 each from a travel agency called Holiday Travel and was attended to by a
certain Margaret Mager (Mager). According to Spouses Viloria, Fernando agreed to buy the
said tickets after Mager informed them that there were no available seats at Amtrak, an
intercity passenger train service provider in the United States. Per the tickets, Spouses
Viloria were scheduled to leave for Newark on August 13, 1997 and return to San Diego on
August 21, 1997.

Subsequently, Fernando requested Mager to reschedule their flight to Newark to an

earlier date or August 6, 1997. Mager informed him that flights to Newark via Continental
Airlines were already fully booked and offered the alternative of a round trip flight via
Frontier Air. Since flying with Frontier Air called for a higher fare of US$526.00 per passenger
and would mean traveling by night, Fernando opted to request for a refund. Mager, however,

denied his request as the subject tickets are non-refundable and the only option that
Continental Airlines can offer is the re-issuance of new tickets within one (1) year from the
date the subject tickets were issued. Fernando decided to reserve two (2) seats with Frontier
Air.
As he was having second thoughts on traveling via Frontier Air, Fernando went to the
Greyhound Station where he saw an Amtrak station nearby. Fernando made inquiries and
was told that there are seats available and he can travel on Amtrak anytime and any day he
pleased. Fernando then purchased two (2) tickets for Washington, D.C.
From Amtrak, Fernando went to Holiday Travel and confronted Mager with the Amtrak
tickets, telling her that she had misled them into buying the Continental Airlines tickets by
misrepresenting that Amtrak was already fully booked. Fernando reiterated his demand for a
refund but Mager was firm in her position that the subject tickets are non-refundable.
Upon returning to the Philippines, Fernando sent a letter to CAI on February 11, 1998,
demanding a refund and alleging that Mager had deluded them into purchasing the subject
tickets.3
In a letter dated February 24, 1998, Continental Micronesia informed Fernando that
his complaint had been referred to the Customer Refund Services of Continental Airlines at
Houston, Texas.4

In a letter dated March 24, 1998, Continental Micronesia denied Fernandos request
for a refund and advised him that he may take the subject tickets to any Continental
ticketing location for the re-issuance of new tickets within two (2) years from the date they
were issued. Continental Micronesia informed Fernando that the subject tickets may be used
as a form of payment for the purchase of another Continental ticket, albeit with a reissuance fee.
On June 17, 1999, Fernando went to Continentals ticketing office at Ayala Avenue,
Makati City to have the subject tickets replaced by a single round trip ticket to Los Angeles,
California under his name. Therein, Fernando was informed that Lourdes ticket was nontransferable, thus, cannot be used for the purchase of a ticket in his favor. He was also
informed that a round trip ticket to Los Angeles was US$1,867.40 so he would have to pay
what will not be covered by the value of his San Diego to Newark round trip ticket.

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In a letter dated June 21, 1999, Fernando demanded for the refund of the subject
tickets as he no longer wished to have them replaced. In addition to the dubious
circumstances under which the subject tickets were issued, Fernando claimed that CAIs act
of charging him with US$1,867.40 for a round trip ticket to Los Angeles, which other airlines
priced at US$856.00, and refusal to allow him to use Lourdes ticket, breached its
undertaking under its March 24, 1998 letter. 6
On September 8, 2000, Spouses Viloria filed a complaint against CAI, praying that CAI
be ordered to refund the money they used in the purchase of the subject tickets with legal
interest from July 21, 1997 and to pay P1,000,000.00 as moral damages, P500,000.00 as
exemplary damages and P250,000.00 as attorneys fees.
Petitioners argument: CAI is liable for the misrepresentation Mager (Holiday travels
Employee) (Holiday Travel is CAIs Ticketing Agent)
Respondents argument: CAI interposed the following defenses: (a) Spouses Viloria have
no right to ask for a refund as the subject tickets are non-refundable; (b) Fernando cannot
insist on using the ticket in Lourdes name for the purchase of a round trip ticket to Los
Angeles since the same is non-transferable; (c) as Mager is not a CAI employee, CAI is not
liable for any of her acts; (d) CAI, its employees and agents did not act in bad faith as to
entitle Spouses Viloria to moral and exemplary damages and attorneys fees.
Issue:
Held: Spouses Vilorias cause of action on the basis of Magers alleged fraudulent
misrepresentation is clearly one of tort or quasi-delict, there being no pre-existing
contractual relationship between them. Therefore, it was incumbent upon Spouses Viloria to
prove that CAI was equally at fault.
It is incumbent upon Spouses Viloria to prove that CAI exercised control or
supervision over Mager by preponderant evidence. The existence of control or supervision
cannot be presumed and CAI is under no obligation to prove its denial or nugatory assertion.
However, the records are devoid of any evidence by which CAIs alleged liability can
be substantiated. Apart from their claim that CAI must be held liable for Magers supposed
fraud because Holiday Travel is CAIs agent, Spouses Viloria did not present evidence that
CAI was a party or had contributed to Magers complained act either by instructing or
authorizing Holiday Travel and Mager to issue the said misrepresentation.
Therefore, without a modicum of evidence that CAI exercised control over Holiday
Travels employees or that CAI was equally at fault, no liability can be imposed on CAI for
Magers supposed misrepresentation.
Note:

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Possession of Control
a persons vicarious liability is anchored on his possession of control, whether absolute or
limited, on the tortfeasor. Without such control, there is nothing which could justify
extending the liability to a person other than the one who committed the tort.
Vicarious liability basis
This moral responsibility may consist in having failed to exercise due care in one's own acts,
or in having failed to exercise due care in the selection and control of one's agent or
servants, or in the control of persons who, by reasons of their status, occupy a position of
dependency with respect to the person made liable for their conduct
By the contract of agency, a person binds him/herself to render some service or to do
something in representation or on behalf of another, with the consent or authority of the
latter. The elements of agency are: (1) consent, express or implied, of the parties to
establish the relationship; (2) the object is the execution of a juridical act in relation to a
third person; (3) the agent acts as a representative and not for him/herself; and (4) the
agent acts within the scope of his/her authority.
Qui facit per alium facit se. "He who acts through another acts himself."
Art. 1868. By the contract of agency a person binds himself to render some
service or to do something in representation or on behalf of another, with the
consent or authority of the latter. (1709a)
Art. 1869. Agency may be express, or implied from the acts of the principal, from
his silence or lack of action, or his failure to repudiate the agency, knowing that
another person is acting on his behalf without authority.
Agency may be oral, unless the law requires a specific form.
Art. 1910. The principal must comply with all the obligations which the agent may
have contracted within the scope of his authority.
As for any obligation wherein the agent has exceeded his power, the principal is
not bound except when he ratifies it expressly or tacitly.
Damages
Another consideration that militates against the propriety of holding CAI liable for moral
damages is the absence of a showing that the latter acted fraudulently and in bad faith.
Article 2220 of the Civil Code requires evidence of bad faith and fraud and moral damages
are generally not recoverable in culpa contractual except when bad faith had been proven.48
The award of exemplary damages is likewise not warranted. Apart from the requirement that
the defendant acted in a wanton, oppressive and malevolent manner, the claimant must
prove his entitlement to moral damages.

Filcar Transport vs Espinas

Doctrine: It is well settled that in case of motor vehicle mishaps, the registered owner of
the motor vehicle is considered as the employer of the tortfeasor-driver, and is
made primarily liable for the tort committed by the latter under Article 2176, in relation with
Article 2180, of the Civil Code.

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Facts: On November 22, 1998, at around 6:30 p.m., respondent Jose A. Espinas was driving
his car along Leon Guinto Street in Manila. Upon reaching the intersection of Leon Guinto
and President Quirino Streets, Espinas stopped his car. When the signal light turned green,
he proceeded to cross the intersection. He was already in the middle of the intersection
when another car, traversing President Quirino Street and going to Roxas Boulevard,
suddenly hit and bumped his car. As a result of the impact, Espinas car turned clockwise.
The other car escaped from the scene of the incident, but Espinas was able to get its plate
number.
After verifying with the Land Transportation Office, Espinas learned that the owner of
the other car, with plate number UCF-545, is Filcar.
Espinas sent several letters to Filcar and to its President and General Manager
Carmen Flor, demanding payment for the damages sustained by his car. On May 31, 2001,
Espinas filed a complaint for damages against Filcar and Carmen Flor before the
Metropolitan Trial Court (MeTC) of Manila, and the case was raffled to Branch 13. In the
complaint, Espinas demanded that Filcar and Carmen Flor pay the amount of P97,910.00,
representing actual damages sustained by his car.
Filcar argued that while it is the registered owner of the car that hit and bumped
Espinas car, the car was assigned to its Corporate Secretary Atty. Candido Flor, the husband
of Carmen Flor. Filcar further stated that when the incident happened, the car was being
driven by Atty. Flors personal driver, Timoteo Floresca.
Atty. Flor, for his part, alleged that when the incident occurred, he was attending a
birthday celebration at a nearby hotel, and it was only later that night when he noticed a
small dent on and the cracked signal light of the car. On seeing the dent and the crack, Atty.
Flor allegedly asked Floresca what happened, and the driver replied that it was a result of a
hit and run while the car was parked in front of Bogota on Pedro Gil Avenue, Manila.
Filcar denied any liability to Espinas and claimed that the incident was not due to its
fault or negligence since Floresca was not its employee but that of Atty. Flor. Filcar and
Carmen Flor both said that they always exercised the due diligence required of a good father
of a family in leasing or assigning their vehicles to third parties.
Petitioners argument: As its core defense, Filcar contends that Article 2176, in relation
with Article 2180, of the Civil Code is inapplicable because it presupposes the existence of
an employer-employee relationship. According to Filcar, it cannot be held liable under the
subject provisions because the driver of its vehicle at the time of the accident, Floresca, is
not its employee but that of its Corporate Secretary, Atty. Flor.

13

Issue: whether Filcar, as registered owner of the motor vehicle which figured in an
accident, may be held liable for the damages caused to Espinas.
Held: Filcar, as registered owner, is deemed the employer of the driver, Floresca,
and is thus vicariously liable under Article 2176 in relation with Article 2180 of the
Civil Code
in so far as third persons are concerned, the registered owner of the motor vehicle is
the employer of the negligent driver, and the actual employer is considered
merely as an agent of such owner.
Thus, it is clear that for the purpose of holding the registered owner of the motor vehicle
primarily and directly liable for damages under Article 2176, in relation with Article 2180, of
the Civil Code, the existence of an employer-employee relationship, as it is understood in
labor relations law, is not required. It is sufficient to establish that Filcar is the registered
owner of the motor vehicle causing damage in order that it may be held vicariously liable
under Article 2180 of the Civil Code.

Note: Under Article 2176, in relation with Article 2180, of the Civil Code, an action
predicated on an employees act or omission may be instituted against the employer who is
held liable for the negligent act or omission committed by his employee.
Although the employer is not the actual tortfeasor, the law makes him vicariously liable on
the basis of the civil law principle of pater familias for failure to exercise due care and
vigilance over the acts of ones subordinates to prevent damage to another. In the last
paragraph of Article 2180 of the Civil Code, the employer may invoke the defense that he
observed all the diligence of a good father of a family to prevent damage.
In Equitable Leasing Corporation v. Suyom, we ruled that in so far as third persons are
concerned, the registered owner of the motor vehicle is the employer of the negligent
driver, and the actual employer is considered merely as an agent of such owner.
In that case, a tractor registered in the name of Equitable Leasing Corporation (Equitable)
figured in an accident, killing and seriously injuring several persons. As part of its defense, Equitable
claimed that the tractor was initially leased to Mr. Edwin Lim under a Lease Agreement, which
agreement has been overtaken by a Deed of Sale entered into by Equitable and Ecatine Corporation
(Ecatine). Equitable argued that it cannot be held liable for damages because the tractor had already
been sold to Ecatine at the time of the accident and the negligent driver was not its employee but of
Ecatine.
In upholding the liability of Equitable, as registered owner of the tractor, this Court said that
regardless of sales made of a motor vehicle, the registered owner is the lawful operator insofar as the
public and third persons are concerned; consequently, it is directly and primarily responsible for the
consequences of its operation

Rationale for holding the registered owner

vicariously liable
The rationale for the rule that a registered owner is vicariously liable for damages
caused by the operation of his motor vehicle is explained by the principle behind motor

14

vehicle registration, which has been discussed by this Court in Erezo, and cited by the CA in
its decision:
The main aim of motor vehicle registration is to identify the owner so that if
any accident happens, or that any damage or injury is caused by the vehicle
on the public highways, responsibility therefor can be fixed on a definite
individual, the registered owner. Instances are numerous where vehicles running
on public highways caused accidents or injuries to pedestrians or other vehicles
without positive identification of the owner or drivers, or with very scant means of
identification. It is to forestall these circumstances, so inconvenient or prejudicial to
the public, that the motor vehicle registration is primarily ordained, in the interest of
the determination of persons responsible for damages or injuries caused on public
highways.
DEFENSE
Neither can Filcar use the defenses available under Article 2180 of the Civil Code - that the
employee acts beyond the scope of his assigned task or that it exercised the due diligence
of a good father of a family to prevent damage - because the motor vehicle registration law,
to a certain extent, modified Article 2180 of the Civil Code by making these defenses
unavailable to the registered owner of the motor vehicle. Thus, for as long as Filcar is the
registered owner of the car involved in the vehicular accident, it could not escape primary
liability for the damages caused to Espinas.
Remedy
This does not mean, however, that Filcar is left without any recourse against the actual
employer of the driver and the driver himself. Under the civil law principle of unjust
enrichment, the registered owner of the motor vehicle has a right to be indemnified by the
actual employer of the driver of the amount that he may be required to pay as damages for
the injury caused to another.
The set-up may be inconvenient for the registered owner of the motor vehicle, but
the inconvenience cannot outweigh the more important public policy being advanced by the
law in this case which is the protection of innocent persons who may be victims of reckless
drivers and irresponsible motor vehicle owners.

Midterms Codal
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this Chapter. (1902a)
Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct
from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of the defendant. (n)
Art. 2179. When the plaintiff's 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 defendant's lack of due care, the plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded. (n)

15

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. 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)
Art. 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in
the vehicle, could have, by the use of the due diligence, prevented the misfortune. It is disputably presumed
that a driver was negligent, if he had been found guilty or reckless driving or violating traffic regulations at
least twice within the next preceding two months.
If the owner was not in the motor vehicle, the provisions of Article 2180 are applicable. (n)
Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating any traffic regulation. (n)
Art. 2187. Manufacturers and processors of foodstuffs, drinks, toilet articles and similar goods shall be liable
for death or injuries caused by any noxious or harmful substances used, although no contractual relation
exists between them and the consumers. (n)
Art. 2188. There is prima facie presumption of negligence on the part of the defendant if the death or injury
results from his possession of dangerous weapons or substances, such as firearms and poison, except when the
possession or use thereof is indispensable in his occupation or business.

Art. 1733. Common carriers, from the nature of their business and for reasons of
public policy, are bound to observe extraordinary diligence in the vigilance over
the goods and for the safety of the passengers transported by them, according to
all the circumstances of each case.

16

Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.
Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault
or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in
Articles 1733 and 1755.
Art. 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or
wilful acts of the former's employees, although such employees may have acted beyond the scope of their
authority or in violation of the orders of the common carriers.
This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good
father of a family in the selection and supervision of their employees.
Requisites:
FGU insurance Corp.
Doctrine: To sustain a claim based thereon (Quasi-Delict), the following requisites

must concur:
(a) damage suffered by the plaintiff;
(b) fault or negligence of the defendant; and,
(c) connection of cause and effect between the fault or negligence of the defendant
and the damage incurred by the plaintiff.
Del Carmen vs Bacoy
The requisites of the doctrine of res ipsa loquitur as established by jurisprudence are as
follows:
1) the accident is of a kind which does not ordinarily occur unless someone
is negligent;
2) the cause of the injury was under the exclusive control of the person in
charge and
3) the injury suffered must not have been due to any voluntary action or
contribution on the part of the person injured.

II.

Principal Defenses in Actions based on negligence

1. Damnum Absque Injuria -

If damage results from a person's exercising his legal rights, it is damnum

absque injuria

Custodio vs CA
Doctrine: There is a material distinction between damages and injury. Injury is the illegal
invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and
damages are the recompense or compensation awarded for the damage suffered. Thus,
there can be damage without injury in those instances in which the loss or harm
was not the result of a violation of a legal duty. These situations are often called
damnum absque injuria. in order that a plaintiff may maintain an action for the injuries of
which he complains, he must establish that such injuries resulted from a breach of duty
which the defendant owed to the plaintiff - a concurrence of injury to the plaintiff and legal

17

responsibility by the person causing it. The underlying basis for the award of tort
damages is the premise that an individual was injured in contemplation of law.
Thus, there must first be the breach of some duty and the imposition of liability
for that breach before damages may be awarded; it is not sufficient to state that there
should be tort liability merely because the plaintiff suffered some pain and suffering
As a general rule, therefore, there is no cause of action for acts done by one person upon his
own property in a lawful and proper manner, although such acts incidentally cause damage
or an unavoidable loss to another, as such damage or loss is damnum absque injuria. When
the owner of property makes use thereof in the general and ordinary manner in which the
property is used, such as fencing or enclosing the same as in this case, nobody can complain
of having been injured, because the inconvenience arising from said use can be considered
as a mere consequence of community life.
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
One may use any lawful means to accomplish a lawful purpose and though the means
adopted may cause damage to another, no cause of action arises in the latters favor. Any
injury or damage occasioned thereby is damnum absque injuria. The courts can give no
redress for hardship to an individual resulting from action reasonably calculated to achieve a
lawful end by lawful means.
Facts: The plaintiff owns a parcel of land with a two-door apartment erected thereon
situated at Interior P. Burgos St., Palingon, Tipas, Taguig, Metro Manila. The plaintiff was able
to acquire said property through a contract of sale with spouses Mamerto Rayos and Teodora
Quintero as vendors last September 1981. Said property may be described to be surrounded
by other immovables pertaining to defendants herein. Taking P. Burgos Street as the point of
reference, on the left side, going to plaintiffs property, the row of houses will be as follows:
That of defendants Cristino and Brigido Custodio, then that of Lito and Maria Cristina Santos
and then that of Ofelia Mabasa. On the right side (is) that of defendant Rosalina Morato and
then a Septic Tank (Exhibit D). As an access to P. Burgos Street from plaintiffs property, there
are two possible passageways. The first passageway is approximately one meter wide and is
about 20 meters distan(t) from Mabasas residence to P. Burgos Street. Such path is passing
in between the previously mentioned row of houses. The second passageway is about 3
meters in width and length from plaintiff Mabasas residence to P. Burgos Street; it is about
26 meters. In passing thru said passageway, a less than a meter wide path through the
septic tank and with 5-6 meters in length has to be traversed.
When said property was purchased by Mabasa, there were tenants occupying the premises
and who were acknowledged by plaintiff Mabasa as tenants. However, sometime in
February, 1982. one of said tenants vacated the apartment and when plaintiff Mabasa went
to see the premises, he saw that there had been built an adobe fence in the first
passageway making it narrower in width. Said adobe fence was first constructed by
defendants Santoses along their property which is also along the first passageway.
Defendant Morato constructed her adobe fence and even extended said fence in such a way
that the entire passageway was enclosed
Respondents argument: therein plaintiff represented by his heirs, herein private

respondents, went to the Court of Appeals raising the sole issue of whether or not
the lower court erred in not awarding damages in their favor.
Issue: whether or not the award of damages is in order.
Held: we agree with petitioners that the Court of Appeals erred in awarding damages in
favor of private respondents. The award of damages has no substantial legal basis. A

18

reading of the decision of the Court of Appeals will show that the award of damages was
based solely on the fact that the original plaintiff, Pacifico Mabasa, incurred losses in the
form of unrealized rentals when the tenants vacated the leased premises by reason of the
closure of the passageway.
However, the mere fact that the plaintiff suffered losses does not give rise to a right to
recover damages. To warrant the recovery of damages, there must be both a right of action
for a legal wrong inflicted by the defendant, and damage resulting to the plaintiff therefrom.
Wrong without damage, or damage without wrong, does not constitute a cause of action,
since damages are merely part of the remedy allowed for the injury caused by a breach or
wrong
Many accidents occur and many injuries are inflicted by acts or omissions which cause
damage or loss to another but which violate no legal duty to such other person, and
consequently create no cause of action in his favor. In such cases, the consequences must
be borne by the injured person alone. The law affords no remedy for damages resulting from
an act which does not amount to a legal injury or wrong.
In other words, in order that the law will give redress for an act causing damage, that act
must be not only hurtful, but wrongful. There must be damnum et injuria. If, as may happen
in many cases, a person sustains actual damage, that is, harm or loss to his person or
property, without sustaining any legal injury, that is, an act or omission which the law does
not deem an injury, the damage is regarded as damnum absque injuria.
In the case at bar, although there was damage, there was no legal injury. Contrary to the
claim of private respondents, petitioners could not be said to have violated the principle of
abuse of right. In order that the principle of abuse of right provided in Article 21 of the Civil
Code can be applied, it is essential that the following requisites concur: (1) The defendant
should have acted in a manner that is contrary to morals, good customs or public policy; (2)
The acts should be willful; and (3) There was damage or injury to the plaintiff.
The act of petitioners in constructing a fence within their lot is a valid exercise of their right
as owners, hence not contrary to morals, good customs or public policy. The law recognizes
in the owner the right to enjoy and dispose of a thing, without other limitations than those
established by law. It is within the right of petitioners, as owners, to enclose and fence their
property. Article 430 of the Civil Code provides that (e)very owner may enclose or fence his
land or tenements by means of walls, ditches, live or dead hedges, or by any other means
without detriment to servitudes constituted thereon.
At the time of the construction of the fence, the lot was not subject to any servitudes. There
was no easement of way existing in favor of private respondents, either by law or by
contract. The fact that private respondents had no existing right over the said passageway is
confirmed by the very decision of the trial court granting a compulsory right of way in their
favor after payment of just compensation. It was only that decision which gave private
respondents the right to use the said passageway after payment of the compensation and
imposed a corresponding duty on petitioners not to interfere in the exercise of said right.
Hence, prior to said decision, petitioners had an absolute right over their property and their
act of fencing and enclosing the same was an act which they may lawfully perform in the
employment and exercise of said right. To repeat, whatever injury or damage may have
been sustained by private respondents by reason of the rightful use of the said land by
petitioners is damnum absque injuria.

19

Notes: The rule in this jurisdiction is that whenever an appeal is taken in a civil case, an
appellee who has not himself appealed may not obtain from the appellate court any
affirmative relief other than what was granted in the decision of the lower court.
The appellee can only advance any argument that he may deem necessary to defeat the
appellants claim or to uphold the decision that is being disputed, and he can assign errors in
his brief if such is required to strengthen the views expressed by the court a quo. These
assigned errors, in turn, may be considered by the appellate court solely to maintain the
appealed decision on other grounds, but not for the purpose of reversing or modifying the
judgment in the appellees favor and giving him other affirmative reliefs.

2. Emergency Rule or Sudden Peril Doctrine

Mckee vs IAC
Doctrine: under what is known as the emergency rule, "one who suddenly finds himself in a place of
danger, and is required to act without time to consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection
may appear to have been a better method, unless the emergency in which he finds himself is brought
about by his own negligence.
Facts: Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge
along MacArthur Highway, between Angeles City and San Fernando, Pampanga, a head-oncollision took place between an International cargo truck, Loadstar, with Plate No. RF912-T
Philippines '76 owned by private respondents, and driven by Ruben Galang, and a Ford
Escort car bearing Plate No. S2-850 Pampanga '76 driven by Jose Koh. The collision resulted
in the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George
Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort.
Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George,
Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one
and a half year old Kim. At the time of the collision, Kim was seated on the lap of Loida
Bondoc who was at the front passenger's seat of the car while Araceli and her two (2) sons
were seated at the car's back seat.
Immediately before the collision, the cargo truck, which was loaded with two hundred (200)
cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to
San Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was
on its way to Angeles City from San Fernando. When the northbound car was about (10)
meters away from the southern approach of the bridge, two (2) boys suddenly darted from
the right side of the road and into the lane of the car. The boys were moving back and forth,
unsure of whether to cross all the way to the other side or turn back. Jose Koh blew the horn
of the car, swerved to the left and entered the lane of the truck; he then switched on the
headlights of the car, applied the brakes and thereafter attempted to return to his lane.
Before he could do so, his car collided with the truck. The collision occurred in the lane of the
truck, which was the opposite lane, on the said bridge.
RTC Dismissed the Civil Cases. In another branch of said RTC The Criminal Case convicted
the truck driver
CA Reversed the decision but upon Motion for Reconsideration affirmed in toto the RTC
Petitioners argument: The truck driver did not slow down and was inattentive

20

Respondents argument: The driver of the car (ford escort) was negligent since he
swerved into his lane
Issue: WoN the petitioners father is negligent thereby precluding her to recover damages
Held: Considering the sudden intrusion of the two (2) boys into the lane of the car, We find
that Jose Koh adopted the best means possible in the given situation to avoid hitting them.
Applying the above test, therefore, it is clear that he was not guilty of negligence.
In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his
negligence was the proximate cause of the collision.
although it may be said that the act of Jose Koh, if at all negligent, was the initial act in the
chain of events, it cannot be said that the same caused the eventual injuries and deaths
because of the occurrence of a sufficient intervening event, the negligent act of the truck
driver, which was the actual cause of the tragedy. The entry of the car into the lane of the
truck would not have resulted in the collision had the latter heeded the emergency signals
given by the former to slow down and give the car an opportunity to go back into its proper
lane. Instead of slowing down and swerving to the far right of the road, which was the proper
precautionary measure under the given circumstances, the truck driver continued at full
speed towards the car.
Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the
proper measures and degree of care necessary to avoid the collision which was the
proximate cause of the resulting accident.

Notes:
Article 2185
The truck driver's negligence is apparent in the records. He himself said that his truck was running at 30
miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on a bridge 52 is
only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person driving a vehicle is
presumed negligent if at the time of the mishap, he was violating any traffic regulation. We cannot
give credence to private respondents' claim that there was an error in the translation by the investigating
officer of the truck driver's response in Pampango as to whether the speed cited was in kilometers per
hour or miles per hour. The law presumes that official duty has been regularly performed; 53 unless there
is proof to the contrary, this presumption holds. In the instant case, private respondents' claim is based on
mere conjecture.

Last Clear Chance

The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is that the
negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it
appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious
consequences to the plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of last
clear chance means that even though a person's own acts may have placed him in a position of peril, and
an injury results, the injured person is entitled to recovery (sic). As the doctrine is usually stated, a person
who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of
his opponent or that of a third person imputed to the opponent is considered in law solely responsible for
the consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff, or
even to a plaintiff who has been grossly negligent in placing himself in peril, if he, aware of the plaintiff's
peril, or according to some authorities, should have been aware of it in the reasonable exercise of due
care, had in fact an opportunity later than that of the plaintiff to avoid an accident

21

Defense
Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable to a
plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as a defense to
defeat claim (sic) for damages.

Valenzuela vs CA
Doctrine: an actor who is confronted with an emergency is not to be held up to the
standard of conduct normally applied to an individual who is in no such situation.
an individual who suddenly finds himself in a situation of danger and is required to act
without much time to consider the best means that may be adopted to avoid the impending
danger, is not guilty of negligence if he fails to undertake what subsequently and upon
reflection may appear to be a better solution, unless the emergency was brought by his own
negligence.
While the emergency rule applies to those cases in which reflective thought, or the
opportunity to adequately weigh a threatening situation is absent, the conduct which is
required of an individual in such cases is dictated not exclusively by the
suddenness of the event which absolutely negates thoughtful care, but by the over-all
nature of the circumstances.
Facts: At around 2:00 in the morning of June 24, 1990, plaintiff Ma. Lourdes Valenzuela was
driving a blue Mitsubishi lancer with Plate No. FFU 542 from her restaurant at Marcos
highway to her home at Palanza Street, Araneta Avenue. She was travelling along Aurora
Blvd. with a companion, Cecilia Ramon, heading towards the direction of Manila. Before
reaching A. Lake Street, she noticed something wrong with her tires; she stopped at a
lighted place where there were people, to verify whether she had a flat tire and to solicit
help if needed. Having been told by the people present that her rear right tire was flat and
that she cannot reach her home in that cars condition, she parked along the sidewalk, about
1 feet away, put on her emergency lights, alighted from the car, and went to the rear to
open the trunk. She was standing at the left side of the rear of her car pointing to the tools
to a man who will help her fix the tire when she was suddenly bumped by a 1987 Mitsubishi
Lancer driven by defendant Richard Li and registered in the name of defendant Alexander
Commercial, Inc. Because of the impact plaintiff was thrown against the windshield of the
car of the defendant, which was destroyed, and then fell to the ground. She was pulled out
from under defendants car. Plaintiffs left leg was severed up to the middle of her thigh, with
only some skin and sucle connected to the rest of the body. She was brought to the UERM
Medical Memorial Center where she was found to have a traumatic amputation, leg, left up
to distal thigh (above knee). She was confined in the hospital for twenty (20) days and was
eventually fitted with an artificial leg. The expenses for the hospital confinement (P
120,000.00) and the cost of the artificial leg (P27,000.00) were paid by defendants from the
car insurance.
Petitioners argument: the court erred in ruling that the employer of Li is not liable under
article 2180 and by decreasing the amount of moral damages
Respondents argument: he was not negligent, the car of petitioner was parked at the
middle of the road or improperly parked near a sidewalk which is not a parking area
Issue: WoN petitioner is guilty of negligence or if not merely contributory negligence
Held: A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will not be
faulted for stopping at a point which is both convenient for her to do so and which is not a
hazard to other motorists. She is not expected to run the entire boulevard in search for a

22

parking zone or turn on a dark Street or alley where she would likely find no one to help her.
It would be hazardous for her not to stop and assess the emergency (simply because the
entire length of Aurora Boulevard is a no-parking zone) because the hobbling vehicle would
be both a threat to her safety and to other motorists. In the instant case, Valenzuela, upon
reaching that portion of Aurora Boulevard close to A. Lake St., noticed that she had a flat
tire. To avoid putting herself and other motorists in danger, she did what was best under the
situation.
Notes: Lis failure to react in a manner which would have avoided the accident could
therefore have been only due to either or both of the two factors: 1) that he was driving at a
very fast speed as testified by Rodriquez; and 2) that he was under the influence of alcohol.
Either factor working independently would have diminished his responsiveness to road
conditions, since normally he would have slowed down prior to reaching Valenzuelas car,
rather than be in a situation forcing him to suddenly apply his brakes.
Liability of employer
In fine, Alexander Commercial, Inc. has not demonstrated, to our satisfaction, that it
exercised the care and diligence of a good father of the family in entrusting its company car
to Li. No allegations were made as to whether or not the company took the steps necessary
to determine or ascertain the driving proficiency and history of Li, to whom it gave full and
unlimited use of a company car. Not having been able to overcome the burden of
demonstrating that it should be absolved of liability for entrusting its company car to Li, said
company, based on the principle of bonus pater familias, ought to be jointly and severally
liable with the former for the injuries sustained by Ma. Lourdes Valenzuela during the
accident.

3. Assumption of Risk
Ilocos Norte Electric Company vs CA
Doctrine:

It is imperative to note the surrounding circumstances which impelled the deceased to leave the comforts of a roof
and brave the subsiding typhoon. As testified by Linda Alonzo Estavillo and Aida Bulong, the deceased, accompanied by the former
two, were on their way to the latter's grocery store "to see to it that the goods were not flooded." As such, shall We punish her for
exercising her right to protect her property from the floods by imputing upon her the unfavorable presumption that she assumed the
risk of personal injury? Definitely not. For it has been held that a person is excused from the force of the rule, that when he
voluntarily assents to a known danger he must abide by the consequences, if an emergency is found to exist or if the life or property
of another is in peril or when he seeks to rescue his endangered property

Facts: From the evidence of plaintiffs it appears that in the evening of June 28 until the early morning of June 29, 1967 a strong
typhoon by the code name "Gening" buffeted the province of Ilocos Norte, bringing heavy rains and consequent flooding in its wake.
Between 5:30 and 6:00 A.M. on June 29, 1967, after the typhoon had abated and when the floodwaters were beginning to recede
the deceased Isabel Lao Juan, fondly called Nana Belen, ventured out of the house of her son-in-law, Antonio Yabes, on No. 19
Guerrero Street, Laoag City, and proceeded northward towards the direction of the Five Sisters Emporium, of which she was the
owner and proprietress, to look after the merchandise therein that might have been damaged. Wading in waist-deep flood on
Guerrero, the deceased was followed by Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by the deceased, and by
Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which was partly owned by the deceased. Aida and Linda walked side by
side at a distance of between 5 and 6 meters behind the deceased, Suddenly, the deceased screamed "Ay" and quickly sank into
the water. The two girls attempted to help, but fear dissuaded them from doing so because on the spot where the deceased sank
they saw an electric wire dangling from a post and moving in snake-like fashion in the water. Upon their shouts for help, Ernesto
dela Cruz came out of the house of Antonio Yabes. Ernesto tried to go to the deceased, but at four meters away from her he turned
back shouting that the water was grounded. Aida and Linda prodded Ernesto to seek help from Antonio Yabes at the YJ Cinema
building which was four or five blocks away.
When Antonio Yabes was informed by Ernesto that his mother-in law had been electrocuted, he acted immediately. With his wife
Jane, together with Ernesto and one Joe Ros, Yabes passed by the City Hall of Laoag to request the police to ask the people of
defendant Ilocos Norte Electric Company or INELCO to cut off the electric current. Then the party waded to the house on Guerrero
Street. The floodwater was receding and the lights inside the house were out indicating that the electric current had been cut off in
Guerrero. Yabes instructed his boys to fish for the body of the deceased. The body was recovered about two meters from an electric
post.

23

Many people came to the house at the corner of Guerrero and M.H. del Pilar after learning that the deceased had been
electrocuted. Among the sympathizers was Dr. Jovencio Castro, Municipal Health Officer of Sarrat, Ilocos Norte. Upon the request
of the relatives of the deceased, Dr. Castro examined the body at about 8:00 A.M. on June 29, 1967. The skin was grayish or, in
medical parlance, cyanotic, which indicated death by electrocution. On the left palm, the doctor found an "electrically charged
wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About the base of the thumb on the left hand was a burned
wound. (Exh. C-2, pp. 102-103, Ibid.) The certificate of death prepared by Dr. Castro stated the cause of' death as ,'circulatory shock
electrocution"

Petitioners argument:

petitioner advanced the theory, as a special defense, that the deceased could have died
simply either by drowning or by electrocution due to negligence attributable only to herself and not to petitioner.
In this regard, it was pointed out that the deceased, without petitioner's knowledge, caused the installation of a burglar deterrent by
connecting a wire from the main house to the iron gate and fence of steel matting, thus, charging the latter with electric current
whenever the switch is on. Petitioner then conjectures that the switch to said burglar deterrent must have been left on, hence,
causing the deceased's electrocution when she tried to open her gate that early morning

Respondents argument:
Petitioner is negligent for not taking the necessary
steps in preventing injury or damage be caused to persons or property
Issue: WoN respondent cannot recover damages since she assumed the risk of
injury by venturing into the flooded waters
Held: it has been held that a person is excused from the force of the rule, that when he voluntarily assents to a known danger he
must abide by the consequences, if an emergency is found to exist or if the life or property of another is in peril or when he seeks to
rescue his endangered property

Notes: Res Gestae

For the admission of the res gestae in evidence, the following requisites must be present: (1) that the principal act, the res gestae,
be a startling occurrence; (2) that the statements were made before the declarant had time to contrive or devise; (3) that the
statements made must concern the occurrence in question and its immediately attending circumstances.
The statements made relative to the startling occurrence are admitted in evidence precisely as an exception to the hearsay rule on
the grounds of trustworthiness and necessity. "Trustworthiness" because the statements are made instinctively (Wesley vs. State,
53 Ala. 182), and "necessity" because such natural and spontaneous utterances are more convincing than the testimony of the
same person on the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact that the declarant, Ernesto de la Cruz, was not
presented to testify does not make the testimony of Linda Alonzo Estavillo and Aida Bulong hearsay since the said declaration is
part of the res gestae.

Fortuitous events
The respondent CA acted correctly in disposing the argument that petitioner be exonerated from liability since typhoons and floods
are fortuitous events. While it is true that typhoons and floods are considered Acts of God for which no person may be held
responsible, it was not said eventuality which directly caused the victim's death. It was through the intervention of petitioner's
negligence that death took place.

4. Contributory Negligence
Art. 2179. When the plaintiff's 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 defendant's lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be awarded.
-

It is an act or omission amounting to want of ordinary care on the part of the person
injured which, concurring with the defendants negligence, is the proximate cause of
the injury.

Manzanares vs People
Doctrine: The defense of contributory negligence does not apply in criminal cases
committed through reckless imprudence, since one cannot allege the negligence of another
to evade the effects of his own negligence.

24

Facts: At about 2:30 oclock in the afternoon of 13 January 1983, a vehicular collision took
place along MacArthur Highway, Barangay Tikay, Malolos, Bulacan, involving an Isuzu sixwheeler truck bearing plate no. CBG 283 Pilipinas 82 and a passenger jeepney with plate no.
DDC 430 UV Pilipinas 82. The Isuzu truck was owned by petitioner Manhattan Enterprises,
Inc. and was then driven by petitioner Teodorico Manzanares. The passenger jeepney, on the
other hand, was registered in the name of Teodoro Basallo. It was established during the trial
that the passenger jeepney was heading southwards in the direction of Manila while the
Isuzu truck was heading the opposite way.
The incident resulted in the deaths of the driver of the passenger jeepney Jesus
Basallo, Miguel Anas, Ferdinand Exaltacion, and Antonio Pasco. It also inflicted serious
physical injuries to some of the passengers of the jeepney, namely: Angela Enriquez, Romeo
Espelimbergo, Teresita dela Cruz, Cita Vicente, Jesus Bartolome, Rolando Peralta, and
Felicidad Raymundo.
Respondents argument: the passenger jeepney owned by Teodoro Basallo was not
covered by any franchise to operate and that Jesus Basallo was driving with an expired
license. Thus, under Article 2185 of the Civil Code, Jesus Basallo is presumed negligent.
Issue: WoN petitioner may assert that the respondent is guilty of contributory

negligence in order to be relieved of his criminal liability.

Held: The severe damage to the front left portion of the passenger jeepney as

shown by said pictures gives rise to the inevitable conclusion that the Isuzu truck
was running fast before it smashed into the jeepney. Such destruction could not
have resulted had petitioner Manzanares been driving his truck slowly for then the
impact would not have been as severe. As we have previously declared, the very
fact of speeding is indicative of imprudent behavior, as a motorist must exercise
ordinary care and drive at a reasonable rate of speed commensurate with the
conditions encountered, which will enable him or her to keep the vehicle under
control and avoid injury to others using the highway

Phil. Commercial International Bank vs CA

Doctrine:
Facts: Ford drew Citibank Check No. SN-10597 on July 19, 1978 in the amount of
P5,851,706.37 representing the percentage tax due for the second quarter of 1978 payable
to the Commissioner of Internal Revenue. A BIR Revenue Tax Receipt No. 28645385 was
issued for the said purpose.
On April 20, 1979, Ford drew another Citibank Check No. SN-16508 in the amount of
P6,311,591.73, representing the payment of percentage tax for the first quarter of 1979 and
payable to the Commissioner of Internal Revenue. Again a BIR Revenue Tax Receipt No. A1697160 was issued for the said purpose.
Both checks were crossed checks and contain two diagonal lines on its upper left corner
between which were written the words payable to the payees account only.

25

The checks never reached the payee, CIR. Thus, in a letter dated February 28, 1980, the BIR,
Region 4-B, demanded for the said tax payments the corresponding periods abovementioned.
As far as the BIR is concerned, the said two BIR Revenue Tax Receipts were considered fake
and spurious. This anomaly was confirmed by the NBI upon the initiative of the BIR. The
findings forced Ford to pay the BIR anew, while an action was filed against Citibank and
PCIBank for the recovery of the amount of Citibank Check
Petitioners argument: Citibank points out that Ford allowed its very own employee,

Godofredo Rivera, to negotiate the checks to his co-conspirators, instead of

delivering them to the designated authorized collecting bank (Metrobank-Alabang)
of the payee, CIR. Citibank bewails the fact that Ford was remiss in the supervision
and control of its own employees, inasmuch as it only discovered the syndicates
activities through the information given by the payee of the checks after an
unreasonable period of time.
PCIBank also blames Ford of negligence when it allegedly authorized Godofredo
Rivera to divert the proceeds of Citibank Check No. SN-04867, instead of using it to
pay the BIR. As to the subsequent run-around of funds of Citibank Check Nos. SN10597 and 16508, PCIBank claims that the proximate cause of the damage to Ford
lies in its own officers and employees who carried out the fraudulent schemes and
the transactions. These circumstances were not checked by other officers of the
company, including its comptroller or internal auditor. PCIBank contends that the
inaction of Ford despite the enormity of the amount involved was a sheer
negligence and stated that, as between two innocent persons, one of whom must
suffer the consequences of a breach of trust, the one who made it possible, by his
act of negligence, must bear the loss.
Respondents argument: Ford denies any negligence in the performance of its duties. It
avers that there was no evidence presented before the trial court showing lack of diligence
on the part of Ford. And, citing the case of Gempesaw vs. Court of Appeals, Ford argues that
even if there was a finding therein that the drawer was negligent, the drawee bank was still
ordered to pay damages.
Furthermore, Ford contends that Godofredo Rivera was not authorized to make any
representation in its behalf, specifically, to divert the proceeds of the checks. It adds that
Citibank raised the issue of imputed negligence against Ford for the first time on appeal.
Thus, it should not be considered by this Court.
Issue: WoN the parties are guilty of contributory negligence
Held: YES ALL OF THEM
PCI BANK
In this case, there was no evidence presented confirming the conscious participation of
PCIBank in the embezzlement. As a general rule, however, a banking corporation is liable for
the wrongful or tortuous acts and declarations of its officers or agents within the course and
scope of their employment. A bank will be held liable for the negligence of its officers or
agents when acting within the course and scope of their employment. It may be liable for
the tortuous acts of its officers even as regards that species of tort of which malice is an
essential element. In this case, we find a situation where the PCIBank appears also to be the

26

victim of the scheme hatched by a syndicate in which its own management employees had
participated.
The pro-manager of San Andres Branch of PCIBank, Remberto Castro, received Citibank
Check Numbers SN 10597 and 16508. He passed the checks to a co-conspirator, an
Assistant Manager of PCIBanks Meralco Branch, who helped Castro open a Checking account
of a fictitious person named Reynaldo Reyes. Castro deposited a worthless Bank of America
Check in exactly the same amount of Ford checks. The syndicate tampered with the checks
and succeeded in replacing the worthless checks and the eventual encashment of Citibank
Check Nos. SN 10597 and 16508. The PCIBank Pro-manager, Castro, and his co-conspirator
Assistant Manager apparently performed their activities using facilities in their official
capacity or authority but for their personal and private gain or benefit.
A bank holding out its officers and agents as worthy of confidence will not be permitted to
profit by the frauds these officers or agents were enabled to perpetrate in the apparent
course of their employment; nor will it be permitted to shirk its responsibility for such frauds,
even though no benefit may accrue to the bank therefrom. For the general rule is that a
bank is liable for the fraudulent acts or representations of an officer or agent acting within
the course and apparent scope of his employment or authority. And if an officer or employee
of a bank, in his official capacity, receives money to satisfy an evidence of indebtedness
lodged with his bank for collection, the bank is liable for his misappropriation of such sum.

Citibank
Citibank should have scrutinized Citibank Check Numbers SN 10597 and 16508 before
paying the amount of the proceeds thereof to the collecting bank of the BIR. One thing is
clear from the record: the clearing stamps at the back of Citibank Check Nos. SN 10597 and
16508 do not bear any initials. Citibank failed to notice and verify the absence of the
clearing stamps. Had this been duly examined, the switching of the worthless checks to
Citibank Check Nos. 10597 and 16508 would have been discovered in time. For this reason,
Citibank had indeed failed to perform what was incumbent upon it, which is to ensure that
the amount of the checks should be paid only to its designated payee. The fact that the
drawee bank did not discover the irregularity seasonably, in our view, constitutes negligence
in carrying out the banks duty to its depositors. The point is that as a business affected with
public interest and because of the nature of its functions, the bank is under obligation to
treat the accounts of its depositors with meticulous care, always having in mind the fiduciary
nature of their relationship.
Thus, invoking the doctrine of comparative negligence, we are of the view that both PCIBank
and Citibank failed in their respective obligations and both were negligent in the selection
and supervision of their employees resulting in the encashment of Citibank Check Nos. SN
10597 and 16508. Thus, we are constrained to hold them equally liable for the loss of the
proceeds of said checks issued by Ford in favor of the CIR.

FORD
Finally, we also find that Ford is not completely blameless in its failure to detect the
fraud. Failure on the part of the depositor to examine its passbook, statements of
account, and cancelled checks and to give notice within a reasonable time (or as
required by statute) of any discrepancy which it may in the exercise of due care and
diligence find therein, serves to mitigate the banks liability by reducing the award of
interest from twelve percent (12%) to six percent (6%) per annum. As provided in
Article 1172 of the Civil Code of the Philippines, responsibility arising from
negligence in the performance of every kind of obligation is also demandable, but
such liability may be regulated by the courts, according to the circumstances. In

27

quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages
that he may recover.
5. Volenti Non Fit Injuria
to a willing person, injury is not done
-

Voluntary assumption of risk

is a common law doctrine which states that if someone willingly places
themselves in a position where harm might result, knowing that some degree
of harm might result, they are not able to bring a claim against the other
party in tort or delict. Volenti only applies to the risk which a reasonable
person would consider them as having assumed by their actions; thus a boxer
consents to being hit, and to the injuries that might be expected from being
hit, but does not consent to (for example) his opponent striking him with an
iron bar, or punching him outside the usual terms of boxing.

As oppose to Assumption of Risk

-

it is a voluntary assumption of risk of harm arising from the negligent act of

the defendant or from other causes.
It presupposes an intentional exposure to a known peril.
The assumption may be express or implied
Express when expressed in a contract
Implied when based on the conduct of the plaintiff

6. Fortuitous Event
Art. 2215. In contracts, quasi-contracts, and quasi-delicts, the court may
equitably mitigate the damages under circumstances other than the case
referred to in the preceding article, as in the following instances:
(1) That the plaintiff himself has contravened the terms of the contract;
(2) That the plaintiff has derived some benefit as a result of the contract;
(3) In cases where exemplary damages are to be awarded, that the defendant
acted upon the advice of counsel;
(4) That the loss would have resulted in any event;
(5) That since the filing of the action, the defendant has done his best to
lessen the plaintiff's loss or injury.

28

NAPOCOR vs CA (103442-45)
Doctrine: To exempt the obligor from liability under Article 1174 of the Civil Code, for a
breach of an obligation due to an "act of God," the following must concur: (a) the cause of
the breach of the obligation must be independent of the will of the debtor; (b) the event
must be either unforseeable or unavoidable; (c) the event must be such as to render it
impossible for the debtor to fulfill his obligation in a moral manner; and (d) the debtor must
be free from any participation in, or aggravation of the injury to the creditor.
Thus, if upon the happening of a fortuitous event or an act of God, there concurs a
corresponding fraud, negligence, delay or violation or contravention in any manner of the
tenor of the obligation as provided for in Article 1170 of the Civil Code, which results in loss
or damage, the obligor cannot escape liability.
Facts: This present controversy traces its beginnings to four (4) separate complaints 2 for
damages filed against the NPC and Benjamin Chavez before the trial court. The plaintiffs
therein, now private respondents, sought to recover actual and other damages for the loss of
lives and the destruction to property caused by the inundation of the town of Norzagaray,
Bulacan on 26-27 October 1978. The flooding was purportedly caused by the negligent
release by the defendants of water through the spillways of the Angat Dam (Hydroelectric
Plant). In said complaints, the plaintiffs alleged, inter alia, that: 1) defendant NPC operated
and maintained a multi-purpose hydroelectric plant in the Angat River at Hilltop, Norzagaray,
Bulacan; 2) defendant Benjamin Chavez was the plant supervisor at the time of the incident
in question; 3) despite the defendants' knowledge, as early as 24 October 1978, of the
impending entry of typhoon "Kading," they failed to exercise due diligence in monitoring the
water level at the dam; 4) when the said water level went beyond the maximum allowable
limit at the height of the typhoon, the defendants suddenly, negligently and recklessly
opened three (3) of the dam's spillways, thereby releasing a large amount of water which
inundated the banks of the Angat River; and 5) as a consequence, members of the
household of the plaintiffs, together with their animals, drowned, and their properties were
washed away in the evening of 26 October and the early hours of 27 October 1978.
Petitioners argument: In their Answers, the defendants, now petitioners, alleged that: 1)
the NPC exercised due care, diligence and prudence in the operation and maintenance of the
hydroelectric plant; 2) the NPC exercised the diligence of a good father in the selection of its
employees; 3) written notices were sent to the different municipalities of Bulacan warning
the residents therein about the impending release of a large volume of water with the onset
of typhoon "Kading" and advise them to take the necessary precautions; 4) the water
released during the typhoon was needed to prevent the collapse of the dam and avoid
greater damage to people and property; 5) in spite of the precautions undertaken and the
diligence exercised, they could still not contain or control the flood that resulted and; 6) the
damages incurred by the private respondents were caused by a fortuitous event or force
majeure and are in the nature and character of damnum absque injuria. By way of special
affirmative defense, the defendants averred that the NPC cannot be sued because it
performs a purely governmental function.
Issue: WoN the petitioner may invoke the act of God doctrine to escape liability
Held: The principle embodied in the act of God doctrine strictly requires that the act must
be one occasioned exclusively by the violence of nature and all human agencies are to be
excluded from creating or entering into the cause of the mischief. When the effect, the cause
of which is to be considered, is found to be in part the result of the participation of man,
whether it be from active intervention or neglect, or failure to act, the whole occurrence is
thereby humanized, as it were, and removed from the rules applicable to the acts of God.
Thus it has been held that when the negligence of a person concurs with an act of God in
producing a loss, such person is not exempt from liability by showing that the immediate

29

cause of the damage was the act of God. To be exempt from liability for loss because of an
act of God, he must be free from any previous negligence or misconduct by which that loss
or damage may have been occasioned.
Accordingly, petitioners cannot be heard to invoke the act of God or force majeure to escape
liability for the loss or damage sustained by private respondents since they, the petitioners,
were guilty of negligence. The event then was not occasioned exclusively by an act of God
or force majeure; a human factor negligence or imprudence had intervened. The effect
then of the force majeure in question may be deemed to have, even if only partly, resulted
from the participation of man. Thus, the whole occurrence was thereby humanized, as it
were, and removed from the laws applicable to acts of God.

Eastern Shipping Lines vs IAC (L-71478)

Doctrine: As the peril of the fire is not comprehended within the exception in Article 1734, supra, Article 1735 of the Civil Code provides
that all cases than those mention in Article 1734, the common carrier shall be presumed to have been at fault or to have acted negligently,
unless it proves that it has observed the extraordinary deligence required by law.

Facts: The basic facts are not in controversy:

In G.R. No. 69044, sometime in or prior to June, 1977, the M/S ASIATICA, a vessel operated
by petitioner Eastern Shipping Lines, Inc., (referred to hereinafter as Petitioner Carrier)
loaded at Kobe, Japan for transportation to Manila, 5,000 pieces of calorized lance pipes in
28 packages valued at P256,039.00 consigned to Philippine Blooming Mills Co., Inc., and 7
cases of spare parts valued at P92,361.75, consigned to Central Textile Mills, Inc. Both sets
of goods were insured against marine risk for their stated value with respondent
Development Insurance and Surety Corporation.
In G.R. No. 71478, during the same period, the same vessel took on board 128 cartons of
garment fabrics and accessories, in two (2) containers, consigned to Mariveles Apparel
Corporation, and two cases of surveying instruments consigned to Aman Enterprises and
General Merchandise. The 128 cartons were insured for their stated value by respondent
Nisshin Fire & Marine Insurance Co., for US $46,583.00, and the 2 cases by respondent Dowa
Fire & Marine Insurance Co., Ltd., for US $11,385.00.
Enroute for Kobe, Japan, to Manila, the vessel caught fire and sank, resulting in the total loss
of ship and cargo. The respective respondent Insurers paid the corresponding marine
insurance values to the consignees concerned and were thus subrogated unto the rights of
the latter as the insured.
G.R. NO. 69044
On May 11, 1978, respondent Development Insurance & Surety Corporation (Development
Insurance, for short), having been subrogated unto the rights of the two insured companies,
filed suit against petitioner Carrier for the recovery of the amounts it had paid to the insured
before the then Court of First instance of Manila, Branch XXX (Civil Case No. 6087).
Petitioner-Carrier denied liability mainly on the ground that the loss was due to an
extraordinary fortuitous event, hence, it is not liable under the law.
On August 31, 1979, the Trial Court rendered judgment in favor of Development Insurance in
the amounts of P256,039.00 and P92,361.75, respectively, with legal interest, plus
P35,000.00 as attorney's fees and costs. Petitioner Carrier took an appeal to the then Court
of Appeals which, on August 14, 1984, affirmed.
Petitioner Carrier is now before us on a Petition for Review on Certiorari.
Petitioners argument: Petitioner-Carrier denied liability mainly on the ground that the
loss was due to an extraordinary fortuitous event, hence, it is not liable under the law.

30

Respondents argument: imputing unseaworthiness of the ship and non-observance of

extraordinary diligence by petitioner Carrier.
Issue: (1) which law should govern the Civil Code provisions on Common carriers or the
Carriage of Goods by Sea Act? and (2) who has the burden of proof to show negligence of
the carrier?
Held: (1) The law of the country to which the goods are to be transported governs the
liability of the common carrier in case of their loss, destruction or deterioration. 4 As the
cargoes in question were transported from Japan to the Philippines, the liability of Petitioner
Carrier is governed primarily by the Civil Code. 5 However, in all matters not regulated by
said Code, the rights and obligations of common carrier shall be governed by the Code of
Commerce and by special laws. 6 Thus, the Carriage of Goods by Sea Act, a special law, is
suppletory to the provisions of the Civil Code.
(2) Under the Civil Code, common carriers, from the nature of their business and for reasons
of public policy, are bound to observe extraordinary diligence in the vigilance over goods,
according to all the circumstances of each case. 8 Common carriers are responsible for the
loss, destruction, or deterioration of the goods unless the same is due to any of the following
causes only:
(1) Flood, storm, earthquake, lightning or other natural disaster or calamity;
xxx xxx xxx

Petitioner Carrier claims that the loss of the vessel by fire exempts it from liability under the
phrase "natural disaster or calamity. " However, we are of the opinion that fire may not be
considered a natural disaster or calamity. This must be so as it arises almost invariably from
some act of man or by human means. 10 It does not fall within the category of an act of God
unless caused by lightning 11 or by other natural disaster or calamity. 12 It may even be
caused by the actual fault or privity of the carrier.
In this case, the respective Insurers. as subrogees of the cargo shippers, have proven that
the transported goods have been lost. Petitioner Carrier has also proved that the loss was
caused by fire. The burden then is upon Petitioner Carrier to proved that it has exercised the
extraordinary diligence required by law
Having failed to discharge the burden of proving that it had exercised the extraordinary
diligence required by law, Petitioner Carrier cannot escape liability for the loss of the cargo.
And even if fire were to be considered a "natural disaster" within the meaning of Article 1734
of the Civil Code, it is required under Article 1739 of the same Code that the "natural
disaster" must have been the "proximate and only cause of the loss," and that the carrier
has "exercised due diligence to prevent or minimize the loss before, during or after the
occurrence of the disaster. " This Petitioner Carrier has also failed to establish satisfactorily.
Nor may Petitioner Carrier seek refuge from liability under the Carriage of Goods by Sea Act,
It is provided therein that:
Sec. 4(2). Neither the carrier nor the ship shall be responsible for loss or
damage arising or resulting from
(b) Fire, unless caused by the actual fault or privity of the carrier.

31

Note: On the US $500 Per Package Limitation:

Petitioner Carrier avers that its liability if any, should not exceed US $500 per package as
provided in section 4(5) of the COGSA, which reads:
(5) Neither the carrier nor the ship shall in any event be or become liable for
any loss or damage to or in connection with the transportation of goods in an
amount exceeding $500 per package lawful money of the United States, or in
case of goods not shipped in packages, per customary freight unit, or the
equivalent of that sum in other currency, unless the nature and value of such
goods have been declared by the shipper before shipment and inserted in bill
of lading. This declaration if embodied in the bill of lading shall be prima facie
evidence, but all be conclusive on the carrier.
By agreement between the carrier, master or agent of the carrier, and the
shipper another maximum amount than that mentioned in this paragraph may
be fixed: Provided, That such maximum shall not be less than the figure above
named. In no event shall the carrier be Liable for more than the amount of
damage actually sustained.
xxx xxx xxx
Article 1749 of the New Civil Code also allows the limitations of liability in this wise:
Art. 1749. A stipulation that the common carrier's liability as limited to the
value of the goods appearing in the bill of lading, unless the shipper or owner
declares a greater value, is binding.
It is to be noted that the Civil Code does not of itself limit the liability of the common carrier
to a fixed amount per package although the Code expressly permits a stipulation limiting
such liability. Thus, the COGSA which is suppletory to the provisions of the Civil Code, steps
in and supplements the Code by establishing a statutory provision limiting the carrier's
liability in the absence of a declaration of a higher value of the goods by the shipper in the
bill of lading. The provisions of the Carriage of Goods by.Sea Act on limited liability are as
much a part of a bill of lading as though physically in it and as much a part thereof as
though placed therein by agreement of the parties. 16
In G.R. No. 69044, there is no stipulation in the respective Bills of Lading (Exhibits "C-2" and
"I-3") 1 7 limiting the carrier's liability for the loss or destruction of the goods. Nor is there a
declaration of a higher value of the goods. Hence, Petitioner Carrier's liability should not
exceed US $500 per package, or its peso equivalent, at the time of payment of the value of
the goods lost, but in no case "more than the amount of damage actually sustained."

32

7. Accident
Jarco Marketing Corp vs CA

Facts
Jarco Marketing owns Syvels Department Store; Kong, Tiope, and Panelo are store managers;
Sps. Aguilar are the parents of daughter Zhieneth.
Criselda and Zhieneth Aguilar (6 years old) were at the 2nd floor of Syvels Department Store.
Criselda was signing her credit card slip when she felt a sudden gust of wind and heard a loud
thud. When she looked behind her, she saw her daughter pinned by the bulk of the stores gift
wrapping counter. She asked the assistance of the people around her, and she was immediately
rushed to Makati Medical Center where she was operated. The next day, she lost her speech. She
died 14 days after the accident. The cause of her death was attributed to the injuries sustained.
After her burial, Sps. Aguilar demanded the reimbursement of hospitalization, medical bills, and
wake and funeral expenses from the petitioners, but they refused to pay. Sps. Aguilar filed a
complaint for damages, seeking the payment of actual [157k~] and moral [300k] damages,
attorneys fees [20k], and for loss of income and exemplary damages.
The petitioners denied any liability for Zhieneths injuries and death. They also said the
complaint was malicious, so they sought the dismissal of the complaint and an award of moral
and exemplary damages, as well as attorneys fees.

Criselda was negligent in exercising care and diligence over her daughter by
allowing her to freely roam around in a store with glassware and appliances

Zhieneth was guilty of contributory negligence for climbing the counter,

thereby triggering its collapse

Counter was made of sturdy wood with strong support, and it has never fell
nor collapsed for the past 15 years since its construction

Jarco Marketing maintained that it observed due diligence of a good father of

the family

Other petitioners raised due care and diligence in the performance of its
duties

RTC found that the preponderance of evidence favored the store, et al, saying that the proximate
cause was Zhieneths act of clinging to the counter, and that Criseldas negligence contributed to
the accident. The RTC found that the counter was not an attractive nuisance [something that
would attract children to approach, get on or use it], since the counter was situated at the end or
corner of the 2nd floor.
Here are the assertions of Sps. Aguilar:

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Zhieneth should be entitled to the conclusive presumption that a child below

9 is incapable of contributory negligence.

Even if she is capable of contributory negligence, it was physically impossible

for her to have propped herself on the counter considering her small frame,
and height and weight of the counter.

The fact that a former employee of the store, Gonzales, accompanied

Zhieneth to the hospital belied the theory that Zhieneth climbed the counter.

This employee Gonzales said that when Zhieneth was asked by the doctor
what she did, she said Nothing, I did not come near the counter and the
counter just fell on me. This should be accorded credit according to the
spouses.

Negligence could not be imputed to Criselda since it was reasonable for her
to let go of Zhieneth at that moment that she was signing the credit card slip.

The proximate cause was petitioners negligence in failing to institute

measures to have the counter permanently nailed.

In response, here is what the petitioners have to say:

Zhieneths death was an ACCIDENT.

Nailing the counter to the ground was not necessary because it has been
there for the longest time without any prior accident and its just in a corner.

The criminal case for homicide through simple negligence filed against them
was dismissed, and they were acquitted.

The CA reversed RTC, ruling in favor of Sps. Aguilar.

Petitioners were negligent in maintaining a structurally dangerous counter

[its shaped like an inverted L; the top is wider than the base; weight of the
upper portion not evenly distributed nor supported by the narrow base]. Two
former employees brought this to the attention of the management but the
latter ignored their concern. CA said the incident could have been avoided
had petitioners repaired this defective counter. The contention that it has
been there for a long time without a prior incident is immaterial.

Zhieneth was incapable of negligence or other tort.

Criselda was absolved of any negligence.

Testimony of Gonzales (former employee) given credit

Awarded actual damages, compensatory damages [denied award of funeral

expenses for lack of proof to substantiate it]

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CA denied petitioners MfR, so they are now seeking the reversal of said decision, saying that
since the action is based on tort, any finding of negligence on the part of Sps. Aguilar would
negate their claim for damages, where said negligence was the proximate cause of the injury
sustained. They also assailed the testimony of Gonzales who was already separated from the
store (tarnished by ill-feelings and all).
Issues and Holding
WON Zhieneths death was accidental or attributable to negligence. ATTRIBUTABLE TO
NEGLIGENCE
WON negligence was attributable to petitioners [for maintaining a defective counter] or to Sps.
Aguilar [for failing to exercise due and reasonable care while inside the store]. FAULT OF
PETITIONERS
Ratio
Accident v. Negligence they are intrinsically contradictory
ACCIDENT pertains to an unforeseen event in which no fault or negligence attaches to
defendant (or if it happens wholly or partly through human agency, it is an event which under the
circumstances is unusual or unexpected by the person to whom it happens); there is exercise of
ordinary care here
NEGLIGENCE is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do
Alternatively, it is the failure to observe, for the protection of another persons interest, that
degree of care, precaution and vigilance which the circumstances justly demand, whereby such
other person suffers injury
Picart v. Smith lays down the test to determine WON negligence exists: Did the defendant in
doing the alleged negligent act use that reasonable care and caution which an ordinary prudent
person would have used in the same situation? If not, he is guilty of negligence.
SC found that Zhieneth performed no act that facilitated her death. Basis is her statement to the
doctor as related by former employee Gonzales. It was made part of the res gestae since she
made the statement immediately subsequent to the startling occurrence. It is axiomatic that
matters relating to declarations of pain or suffering and statements made to a physician are
generally considered declarations and admissions. Also, the court considered the fact that
Zhieneth was of a tender age (and in so much pain!), so it would be unthinkable that she would
lie.
Other findings:

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Petitioners were informed of the danger posed by the unstable counter, yet they did not act on the
matter, so they failed to discharge the due diligence required of a good father of a family.
They failed to establish that the testimonies of former employees were biased.
Conclusive presumption that children below 9 are incapable of contributory negligence is
applied.
Judge Sangco [book author] says that children below 9 is conclusively presumed to have acted
without discernment, and are exempt from criminal liability. Since negligence may be a felony
and a QD, it required discernment as a condition of liability, so therefore, said children are
presumed to be incapable of negligence.
Even if contributory negligence would be attributed to Zhieneth, no injury should have occurred
if petitioners theory that the counter is stable and sturdy is to be believed.
Criselda is absolved from any contributory negligence, since it was reasonable for her to let go of
her child to sign a slip.
Zhieneth was just a foot away from her mother, and the counter was just four meters away from
Criselda (contrary to statements that Zhieneth was loitering at that time).