1 Dulay to CAA

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Title: Maria Benita Dulay vs CA (Torts vs Quasi-Delict)

GR 108017 April 3, 1995

Facts:

On December 7, 1988, an altercation between Benigno Torzuela and Atty. Napoleon Dulay occurred a

the Big Bang Sa Alabang, Alabang Village, Muntinlupa as a result of which Benigno Torzuela, the security guard

on duty at the said carnival, shot and killed Atty. Napoleon Dulay. Petitioner Maria Benita A. Dulay, widow of the

deceased Napoleon Dulay, in her own behalf and in behalf of her minor children, filed an action for damages

against Benigno Torzuela and private respondents Safeguard and/or Superguard, alleged employers o

defendant Torzuela. Respondent Superguard filed a Motion to Dismiss on the ground that the complaint doesnot state a valid cause of action. Superguard claimed that Torzuelas act of shooting Dulay was beyond the scope

of his duties, and that since the alleged act of shooting was committed with deliberate intent (dolo), the civi

liability therefor is governed by Article 100 of the Revised Penal Code. Superguard further alleged that

complaint for damages based on negligence under Article 2176 of the New Civil Code, such as the one filed by

petitioners, cannot lie, since the civil liability under Article 2176 applies only to quasi-offenses under Article 365

of the Revised Penal Code. In addition, the respondent argued that petitioners filing of the complaint is

premature considering that the conviction of Torzuela in a criminal case is a condition sine qua non for the

employers subsidiary liability. Respondent Safeguard also filed a motion praying that it be excluded as

defendant on the ground that defendant Torzuela is not one of its employees. Petitioners opposed both

motions, stating that their cause of action against the private respondents is based on their liability under Article

2180 of the New Civil Code. Respondent judge declared that the complaint was one for damages founded on

crimes punishable under Articles 100 and 103 of the Revised Penal Code as distinguished from those arising

from, quasi-delict.

Issue:

WON Torzuela s act of shooting Napoleon Dulay constitutes a quasi-delict actionable under Article 2176 of the

New Civil Code;

WON Article 33 of the New Civil Code applies only to injuries intentionally committed; and

WON the liability or respondents is subsidiary under the Revised Penal Code.

Held/Ratio:

(1) Yes. Article 2176 of the New Civil Code provides that 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 o

this Chapter. Contrary to the theory of private respondents, there is no justification for limiting the scope oArticle 2176 of the Civil Code to acts or omissions resulting from negligence. Well-entrenched is the doctrine

that article 2176 covers not only acts committed with negligence, but also acts which are voluntary and

intentional.

(2)

No. The term physical injuries in Article 33 has already been construed to include bodily injuries causing death

It is not the crime of physical injuries defined in the Revised Penal Code. It includes not only physical injuries but

also consummated, frustrated, and attempted homicide. Although in the Marcia case, it was held that no

independent civil action may be filed under Article 33 where the crime is the result of criminal negligence, it

must be noted, however, that Torzuela, the accused in the case at bar, is charged with homicide, not with

reckless imprudence, whereas the defendant in Marcia was charged with reckless imprudence. Therefore, in thi

case, a civil action based on Article 33 lies.

(3)

No. Under Article 2180 of the New Civil Code, when an injury is caused by the negligence of the employee, thereinstantly arises a presumption of law that there was negligence on the part of the master or employer either in

the selection of the servant or employee, or in supervision over him after selection or both. The liability of the

employer under Article 2180 is direct and immediate; it is not conditioned upon prior recourse against the

negligent employee and a prior showing of the insolvency of such employee. Therefore, it is incumbent upon the

private respondents to prove that they exercised the diligence of a good father of a family in the selection and

supervision of their employee.


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Title: Air Frances vs Carrascoso (Quasi-delict and contract)

GR L-21438 September 29, 1966

Facts:

Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March

30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to

plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled

in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first class"

seat that he was occupying because, in the words of the witness Ernesto G. Cuento, there was a "white man"who, the Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat, the

plaintiff, as was to be expected, refused, and told defendant's Manager that his seat would be taken over hi

dead body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino passengers got

nervous in the tourist class; when they found out that Mr. Carrascoso was having a hot discussion with the white

man [manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white

man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the plane.

Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class

ticket. But petitioner asserts that said ticket did not represent the true and complete intent and agreement ofthe parties; that said respondent knew that he did not have confirmed reservations for first class on any specific

flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no

guarantee that he would have a first class ride, but that such would depend upon the availability of first class

seats.

These are matters which petitioner has thoroughly presented and discussed in its brief before the Court

of Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had

confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly

that from Saigon to Beirut".

And, the Court of Appeals disposed of this contention thus:

Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that the

passenger to whom the same had been issued, would be accommodated in the first-class compartment, for as in

the case of plaintiff he had yet to make arrangements upon arrival at every station for the necessary first-class

reservation. We are not impressed by such a reasoning. We cannot understand how a reputable firm like

defendant airplane company could have the indiscretion to give out tickets it never meant to honor at all. It

received the corresponding amount in payment of first-class tickets and yet it allowed the passenger to be at

the mercy of its employees. It is more in keeping with the ordinary course of business that the company

should know whether or riot the tickets it issues are to be honored or not.

Issue:

WON Carrascoso was entitled to damages?

Held:

Yes.

Ratio:

Although true that there was no mention of bad faith in the complaint, the inference of bad faith can be drawnfrom the facts and circumstances therein. The petitioner violated its contract of transportation with the aggravating

circumstance committed by its manager when it went to the extent of threatening the plaintiff in the presence of many

passengers.

The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in

law. For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21 of the Civ

Code says:

ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs

or public policy shall compensate the latter for the damage.


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In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article 2219

(10), Civil Code, moral damages are recoverable.

6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. 43 And

this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public

It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a

relation attended with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give ground fo

an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carrier's

employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against persona

misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or discourteous

conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier.

Title: Viloria vs. Continental Airlines, Inc. (Quasi-delict and contract)

GR 188288 January 16, 2012

Facts:

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 passenge

train service provider in the United States.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.

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 fo

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 thesubject 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.

In a letter dated June 21, 1999, Fernando demanded for the refund of the subject tickets as he no longe

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.

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

payP1,000,000.00 as moral damages, P500,000.00 as exemplary damages and P250,000.00 as attorneys fees. Issue:

Primary issue:WON continental airlines inc., (CAI) bound by the acts of Holiday Travels agents and employees?

Secondary issue:WON a principal-agent relationship exist between CAI and Holiday Travel?Assuming that an

agency relationship exists between CAI and Holiday Travel?

Held:

1. 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


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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 principal

agency 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. All that he has to prove is the existence of the contract and the fact of its non-performanceby the carrier.

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. Therefore, without a modicum of evidence that CA

exercised control over Holiday Travels employees or that CAI was equally at fault, no liability can be imposed on

CAI for Magers supposed misrepresentation.

2.

Contrary to the findings of the CA, all the elements of an agency exist in this case. The first and second elements

are present as CAI does not deny that it concluded an agreement with Holiday Travel, whereby Holiday Trave

would enter into contracts of carriage with third persons on CAIs behalf. The third element is also present as it

is undisputed that Holiday Travel merely acted in a representative capacity and it is CAI and not Holiday Trave

who is bound by the contracts of carriage entered into by Holiday Travel on its behalf. The fourth element is also

present considering that CAI has not made any allegation that Holiday Travel exceeded the authority that wa

granted to it. In fact, CAI consistently maintains the validity of the contracts of carriage that Holiday Trave

executed with Spouses Viloria and that Mager was not guilty of any fraudulent misrepresentation. That CA

admits the authority of Holiday Travel to enter into contracts of carriage on its behalf is easily discernible from

its February 24, 1998 and March 24, 1998 letters, where it impliedly recognized the validity of the contracts

entered into by Holiday Travel with Spouses Viloria. When Fernando informed CAI that it was Holiday Travel who

issued to them the subject tickets, CAI did not deny that Holiday Travel is its authorized agent.

This Court cannot therefore allow CAI to take an altogether different position and deny that Holiday

Travel is its agent without condoning or giving imprimatur to whatever damage or prejudice that may resul

from such denial or retraction to Spouses Viloria, who relied on good faith on CAIs acts in recognition of Holiday

Travels authority. Estoppel is primarily based on the doctrine of good faith and the avoidance of harm that wilbefall an innocent party due to its injurious reliance, the failure to apply it in this case would result in gross

travesty of justice.20 Estoppel bars CAI from making such denial.

CAIs liability for damages for its refusal to accept Lourdes ticket for the purchase of Fernandos round trip

ticket is offset by Spouses Vilorias liability for their refusal to pay the amount, which is not covered by the subject

tickets. Moreover, the contract between them remains, hence, CAI is duty bound to issue new tickets for a destination

chosen by Spouses Viloria upon their surrender of the subject tickets and Spouses Viloria are obliged to pay whateve

amount is not covered by the value of the subject tickets.

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 beenproven. 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.

BAKA ITANONG NI MAM:

Out of the above given principles, sprung the creation and acceptance of the relationship of agency whereby

one party, called the principal (mandante), authorizes another, called the agent (mandatario), to act for and in his behal

in transactions with third persons. The essential elements of agency are: (1) there is 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 himself, and (4) the agent acts within the scope of his authority.


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Agency is basically personal, representative, and derivative in nature. The authority of the agent to act emanates from

the powers granted to him by his principal; his act is the act of the principal if done within the scope of the authority.

Considering that the fundamental hallmarks of an agency are present, this Court finds it rather peculiar that the CA had

branded the contractual relationship between CAI and Holiday Travel as one of sale. The distinctions between a sale and

an agency are not difficult to discern and this Court, as early as 1970, had already formulated the guidelines that would

aid in differentiating the two (2) contracts. In Commissioner of Internal Revenue v. Constantino,21 this Court

extrapolated that the primordial differentiating consideration between the two (2) contracts is the transfer of ownership

or title over the property subject of the contract. In an agency, the principal retains ownership and control over theproperty and the agent merely acts on the principals behalf and under his instructions in furtherance of the objectives

for which the agency was established. On the other hand, the contract is clearly a sale if the parties intended that the

delivery of the property will effect a relinquishment of title, control and ownership in such a way that the recipient may

do with the property as he pleases.

Title: Taylor vs Manila Electric, Railroad and light co. (Art. 1173, Civil Code)

GR L-4977 March 22, 1910

Facts:

An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a

minor, by his father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street railway and an electric light

system in the city of Manila. Its power plant is situated at the eastern end of a small island in the Pasig Rive

within the city of Manila, known as the Isla del Provisor. The power plant may be reached by boat or by crossing

a footbridge, impassable for vehicles, at the westerly end of the island.

The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of age

the son of a mechanical engineer, more mature than the average boy of his age, and having considerable

aptitude and training in mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age

crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an employee of the

defendant, who and promised to make them a cylinder for a miniature engine. Finding on inquiry that Mr

Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity and perhaps by the unusua

interest which both seem to have taken in machinery, spent some time in wandering about the company's

premises. The visit was made on a Sunday afternoon, and it does not appear that they saw or spoke to anyoneafter leaving the power house where they had asked for Mr. Murphy.

After watching the operation of the travelling crane used in handling the defendant's coal, they walked

across the open space in the neighborhood of the place where the company dumped in the cinders and ashes

from its furnaces. Here they found some twenty or thirty brass fulminating caps scattered on the ground. These

caps are approximately of the size and appearance of small pistol cartridges and each has attached to it two long

thin wires by means of which it may be discharged by the use of electricity. They are intended for use in the

explosion of blasting charges of dynamite, and have in themselves a considerable explosive power. After some

discussion as to the ownership of the caps, and their right to take them, the boys picked up all they could find,

hung them on stick, of which each took end, and carried them home. After crossing the footbridge, they met a

little girl named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The boys

then made a series of experiments with the caps. They trust the ends of the wires into an electric light sockeand obtained no result. They next tried to break the cap with a stone and failed. Manuel looked for a hammer

but could not find one. Then they opened one of the caps with a knife, and finding that it was filled with a

yellowish substance they got matches, and David held the cap while Manuel applied a lighted match to the

contents. An explosion followed, causing more or less serious injuries to all three. Jessie, who when the boys

proposed putting a match to the contents of the cap, became frightened and started to run away, received a

slight cut in the neck. Manuel had his hand burned and wounded, and David was struck in the face by severa

particles of the metal capsule, one of which injured his right eye to such an extent as to the necessitate it

removal by the surgeons who were called in to care for his wounds.

The evidence does definitely and conclusively disclose how the caps came to be on the defendant'

premises, nor how long they had been there when the boys found them. It appears, however, that some month


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before the accident, during the construction of the defendant's plant, detonating caps of the same size and kind

as those found by the boys were used in sinking a well at the power plant near the place where the caps were

found; and it also appears that at or about the time when these caps were found, similarly caps were in use in

the construction of an extension of defendant's street car line to Fort William McKinley. The caps when found

appeared to the boys who picked them up to have been lying for a considerable time, and from the place where

they were found would seem to have been discarded as detective or worthless and fit only to be thrown upon

the rubbish heap.

No measures seems to have been adopted by the defendant company to prohibit or prevent visitors

from entering and walking about its premises unattended, when they felt disposed so to do. As admitted indefendant counsel's brief, "it is undoubtedly true that children in their play sometimes crossed the foot bridge

to the islands;" and, we may add, roamed about at will on the uninclosed premises of the defendant, in the

neighborhood of the place where the caps were found. There is evidence that any effort ever was made to

forbid these children from visiting the defendant company's premises, although it must be assumed that the

company or its employees were aware of the fact that they not infrequently did so.

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the

interisland transports. Later he took up work in his father's office, learning mechanical drawing and

mechanical engineering. About a month after his accident he obtained employment as a mechanical

draftsman and continued in that employment for six months at a salary of P2.50 a day; and it appears that he

was a boy of more than average intelligence, taller and more mature both mentally and physically than most

boys of fifteen.

Issue:

WON the company is liable for damages to the plaintiff because of its negligence for allowing the

children to be exposed to harmful substances?

Held:

No.

Ratio:

Fulminating caps or detonators for the discharge by electricity of blasting charges by dynamite are not articles in

common use by the average citizen, and under all the circumstances, and in the absence of all evidence to the contrary

we think that the discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on

defendant's premises fairly justifies the inference that the defendant company was either the owner of the caps i

question or had the caps under its possession and control. We think also that the evidence tends to disclose that these

caps or detonators were willfully and knowingly thrown by the company or its employees at the spot where they werefound, with the expectation that they would be buried out of the sight by the ashes which it was engaged in dumping in

that neighborhood, they being old and perhaps defective; and, however this may be, we are satisfied that the evidence

is sufficient to sustain a finding that the company or some of its employees either willfully or through an oversight left

them exposed at a point on its premises which the general public, including children at play, where not prohibited from

visiting, and over which the company knew or ought to have known that young boys were likely to roam about in

pastime or in play.

It is clear that the accident could not have happened and not the fulminating caps been left exposed at the poin

where they were found, or if their owner had exercised due care in keeping them in an appropriate place; but it i

equally clear that plaintiff would not have been injured had he not, for his own pleasure and convenience, entered upon

the defendant's premises, and strolled around thereon without the express permission of the defendant, and had he nopicked up and carried away the property of the defendant which he found on its premises, and had he not thereafte

deliberately cut open one of the caps and applied a match to its contents.

Children are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the restless

spirit of youth, boys here as well as there will usually be found whenever the public is permitted to congregate. The

movement of machinery, and indeed anything which arouses the attention of the young and inquiring mind, will draw

them to the neighborhood as inevitably as does the magnet draw the iron which comes within the range of its magnetic

influence. The owners of premises, therefore, whereon things attractive to children are exposed, or upon which the

public are expressly or impliedly permitted to enter or upon which the owner knows or ought to know children are likely

to roam about for pastime and in play, "must calculate upon this, and take precautions accordingly." In such cases the


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owner of the premises can not be heard to say that because the child has entered upon his premises without his expres

permission he is a trespasser to whom the owner owes no duty or obligation whatever. The owner's failure to take

reasonable precautions to prevent the child from entering his premises at a place where he knows or ought to know tha

children are accustomed to roam about of to which their childish instincts and impulses are likely to attract them is a

least equivalent to an implied license to enter, and where the child does enter under such conditions the owner's failure

to take reasonable precautions to guard the child against injury from unknown or unseen dangers, placed upon such

premises by the owner, is clearly a breach of duty, responsible, if the child is actually injured, without other fault on its

part than that it had entered on the premises of a stranger without his express invitation or permission. To hold

otherwise would be expose all the children in the community to unknown perils and unnecessary danger at the whim othe owners or occupants of land upon which they might naturally and reasonably be expected to enter.

But while we hold that the entry of the plaintiff upon defendant's property without defendant's express

invitation or permission would not have relieved defendant from responsibility for injuries incurred there by plaintiff

without other fault on his part, if such injury were attributable to the negligence of the defendant, we are of opinion

that under all the circumstances of this case the negligence of the defendant in leaving the caps exposed on its

premises was not the proximate cause of the injury received by the plaintiff, which therefore was not, properly

speaking, "attributable to the negligence of the defendant," and, on the other hand, we are satisfied that plaintiffs

action in cutting open the detonating cap and putting match to its contents was the proximate cause of the explosion

and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly responsible for

the injuries thus incurred.

As was said in case of Railroad Co. vs. Stout, "While it is the general rule in regard to an adult that to entitle him

to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from

fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to

his maturity and capacity only, and this is to be determined in each case by the circumstances of the case." In the case a

bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both mentally and physically than

the average boy of his age. The evidence of record leaves no room for doubt that, despite his denials on the witness

stand, he well knew the explosive character of the cap with which he was amusing himself. The series of experiment

made by him in his attempt to produce an explosion admit of no other explanation. His attempt to discharge the cap by

the use of electricity, followed by his efforts to explode it with a stone or a hammer, and the final success of hi

endeavors brought about by the application of a match to the contents of the caps, show clearly that he knew what he

was about.

We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible of the

danger to which he exposed himself when he put the match to the contents of the cap; that he was sui juris in the

sense that his age and his experience qualified him to understand and appreciate the necessity for the exercise of that

degree of caution which would have avoided the injury which resulted from his own deliberate act; and that the

injury incurred by him must be held to have been the direct and immediate result of his own willful and reckless act,

so that while it may be true that these injuries would not have been incurred but for the negligence act of the

defendant in leaving the caps exposed on its premises, nevertheless plaintiff's own act was the proximate and

principal cause of the accident which inflicted the injury.

Title: Jarco Marketing Corporation vs CA (Tests of negligence)GR 129792 December 21, 1999

Facts:

Petitioner Jarco Marketing Corporation is the owner of Syvels Department Store, Makati City. Petitioners

Leonardo Kong, Jose Tiope and Elisa Panelo are the stores branch manager, ope rations manager, and

supervisor, respectively. Private respondents are spouses and the parents of Zhieneth Aguilar (Zhieneth).

In the afternoon of 9 May 1983, Criselda and Zhieneth were at the 2nd floor of Syvels Department Store, Makati

City. Criselda was signing her credit card slip at the payment and verification counter when she felt a sudde

gust of wind and heard a loud thud. She looked behind her. She then saw Zhieneth on the floor crushed by bul

of the stores gift-wrapping counter/structure. Although shocked, Criselda was quick to ask the assistance of the

people around in lifting the counter and retrieving Zhieneth from the floor.


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Zhieneth was rushed to the hospital. She lived through the operation but lost her ability to speak. She then died

two weeks later due to the injuries she sustained.

Respondents demanded the reimbursement of hospitalization, medical bills and wake and funeral expense

they incurred from the petitioners. The petitioners refused to pay. Thus, respondents filed a civil case to recove

P157522.86 as actual damages, P300,000.00 as moral damages and P20,000.00 in attorneys fees.

In their defense, petitioners claimed that Criselda was negligent for allowing her daughter to freely roam around

the Department Store. They also claimed that Zhieneth was guilty of contributory negligence by climbing onto

the counter which later fell on her causing her untimely death.

Respondents on the other hand claim that Criselda was not guilty of negligence as it was natural for her to leaveCriselda when she was signing her credit card slip. They argue that Zhieneth is not presumed to be guilty of

contributory negligence as she was only 6 years old at that time and that her dying declaration as testified to by

the doctor was that the counter just fell on her without her climbing onto it. Respondents also argue that the

structure should have been nailed to the floor to prevent incidents like this.

As to the claim that the counter should have been nailed, they claim that it was unnecessary as it had been in

existence for many years without incident. Further, petitioners claim that the criminal case for simple negligence

filed against them has been dismissed and that a verdict of acquittal issued in their favour.

Trial court dismissed the complaint but the Court of Appeals reversed.

Issue:

WON Jarco Marketing is liable for the death of Zhieneth?

Held: Yes.

Ratio:

Note:

What is the doctrine of attractive nuisance?

One who maintains on his estate or premises an attractive nuisance without exercising due case to prevent children

from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child

is technically a trespasser in the premises. (Jarco Marketing Corp. v. CA, 117 SCAD 818, 321 SCRA 375 (1991)

An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. It is a

fortuitous circumstance, event or happening; an event happening without any human agency, or if happening wholly or

partly through human agency, an event which under the circumstances is unusual or unexpected by the person to whom

it happens.

While 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. Negligence is the failure to observe, for the protection of the interest of another person

that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffer

injury. The test of is: Did the defendant in doing the alleged negligent act use that reasonable care and caution which

an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence.

Zhieneths dying statement before being rushed to into the operating room that she did not do anything but

merely approached the counter forms part of the res gestae in accordance with Section 42 of Rule 130 of the Rules o

Court. It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are

generally considered declarations and admissions.

Further, the negligence of the petitioners was proven by the testimony of their employees who testified that the

counter was heavy, shaky and could collapse at any time. It was verified that the counter was not nailed which furtheaggravated the counters instability. Worse, such condition was brought to the attention of the store supervisor but no

action was taken to address it. Verily, such shows a blatant failure to exercise the diligence of a good father of a family.

Both Criselda and Zhieneth are not guilty of contributory negligence. Zhieneth, a 6 year old enjoys the

presumption that she is incapable of committing contributory negligence. Petitioners failed to rebut such presumption

Further, Criselda was not guilty of contributory negligence as it was only natural for her to let go of Zhieneth to sign he

credit card slip.

Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below

nine (9) years old in that they are incapable of contributory negligence. In his book, 28 former Judge Cezar S. Sangco

stated:


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In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without

discernment, and is, on that account, exempt from criminal liability. The same presumption and a like exemption

from criminal liability obtains in a case of a person over nine and under fifteen years of age, unless it is shown that he

has acted with discernment. Since negligence may be a felony and a quasi-delict and required discernment as a

condition of liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed to

be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of

a child over nine but under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child

under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law.

[Emphasis supplied]Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over the counter, no

injury should have occurred if we accept petitioners' theory that the counter was stable and sturdy. For if that was

the truth, a frail six-year old could not have caused the counter to collapse. The physical analysis of the counter by

both the trial court and Court of Appeals and a scrutiny of the evidence 29 on record reveal otherwise, i.e., it was not

durable after all. Shaped like an inverted "L," the counter was heavy, huge, and its top laden with formica. It

protruded towards the customer waiting area and its base was not secured. 30

CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to CRISELDA's

waist, later to the latter's hand. 31 CRISELDA momentarily released the child's hand from her clutch when she signed

her credit card slip. At this precise moment, it was reasonable and usual for CRISELDA to let go of her child. Further, at

the time ZHIENETH was pinned down by the counter, she was just a foot away from her mother; and the gift-

wrapping counter was just four meters away from CRISELDA. 32 The time and distance were both significant.

ZHIENETH was near her mother and did not loiter as petitioners would want to impress upon us. She even admitted

to the doctor who treated her at the hospital that she did not do anything; the counter just fell on her.

G.R. No. L-7664 August 29, 1958

MR. AND MRS. AMADOR C. ONG,plaintiffs-appellants,

vs.

METROPOLITAN WATER DISTRICT

FACTS:

Plaintiff spouses seek to recover from defendant, a government-owned corporation, the sum of P50,000 as damages, P5,000 as funeral

expenses, and P11,000 as attorneys' fees, for the death of their son Dominador Ong in one of the swimming pools operated by d efendant

In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school and his brothers Ruben and Eusebio,

went to defendant's swimming pools.

They went immediately to one of the small pools were the water is shallow.

When Domingo went to the adjoining building to drink a bottle of Coke, his brothers Ruben and Eusebio went to the bigger pool.

Between 4:40-4:45 pm, Dominador Ong got drowned in the big pool.

It must be noted that it was unknown how Dominador got into the big pool. ( Even his brothers)

There were measures taken by the employees of Manila Water District to rescue Dominador: The lifeguard Manuel Abano retrieved hi

body and applied manual artificial respiration. The male nurse also came to render assistance. They also injected camphorated oil and

called Dr. Ayuyao. However, upon arrival of Dr. Ayuyao, the boy was already dead.

ISSUE:WoN the death of Dominador Ong can be attributed to the negligence of the defendant/its employees

HELD: NO

RULING:

Petitioners contentions:

(1) That at the time Dominador was drowning, there was no available lifeguard so as the help to save him came late. And that when the brothers

were shouting for help, lifeguard Manuel Albano did not immediately respond to the alarm/shout and that he was reading magazine and only upon

third call did he render retrieval.


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This was belied by the written statements of the brothers Ong emphasizing that after the lifeguards heard their shout for help, they immediately divedinto the pool to rescue Dominador. Moreover, there is sufficient evidence to show that appellee has taken all necessary precautions to avoiddanger to the lives of its patrons or prevent accident. Thus, it has been shown that the swimming pools of appellee are provided with a ring buoy

toy roof, towing line, oxygen resuscitator and a first aid medicine kit. The bottom of the pools is painted with black colors so as to insure clearvisibility. There is on display in a conspicuous place within the area certain rules and regulations governing the use of the pools. Appellee employssix lifeguards who are all trained as they had taken a course for that purpose and were issued certificates of proficiency. These lifeguards work onschedule prepared by their chief and arranged in such a way as to have two guards at a time on duty to look after the safety of the bathers. There is a

male nurse and a sanitary inspector with a clinic provided with oxygen resuscitator. And there are security guards who are available always in case oemergency.

(2) That even it be assumed that the deceased is partly to be blamed, the Manila Water District may still be held liable under the doctrine of lasclear chance

doctrine of last clear chance: that the negligence of claimant does not preclude the recovery for the negligence of defendant where it appears thathe latter, by exercising reasonable care and prudence might have avoided injurious consequences to claimant notwithstanding his negligence. OR A

person who has last clear chance or opportunity of avoiding an accident notwithstanding the negligent acts of his opponent or the negligence of thirdperson which is imputed to his opponent, is considered in law solely responsible for the consequences of the accident.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself in thewrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discovewhich agent is immediately and directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous,since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances, the

law is that a person who has the last clear chance to avoid the impending harm and fails to do so is chargeable with the consequenceswithout reference to the prior negligence of the other party. (Picart vs. Smith, 37 Phil., 809)

Doctrine not applicable.Since it is not known how minor Ong came into the big swimming pool and it being apparent that he went there withoutany companion in violation of one of the regulations of appellee as regards the use of the pools, and it appearing that lifeguard Abno responded to thecall for help as soon as his attention was called to it and immediately after retrieving the body all efforts at the disposal of appellee had been put into

play in order to bring him back to life, it is clear that there is no room for the application of the doctrine now invoked by appellants to impute liabilityto appellee..

The last clear chance doctrine can never apply where the party charged is required to act instantaneously, and if the injury cannot beavoided by the application of all means at hand after the peril is or should have been discovered; at least in cases in which any previousnegligence of the party charged cannot be said to have contributed to the injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d1063. (A.L.R. Digest, Vol. 8, pp. 955-956)

N.B: The court , following the observation of the trial court, found sufficient evidence that Dominador might have dived where the water is only 5.5fdeep and thus he might have hit/bumped his head.

G.R. No. L-51806 November 8, 1988

CIVIL AERONAUTICS ADMINISTRATION,petitioner,

vs.COURT OF APPEALS and ERNEST E. SIMKE, respondents.

FACTS:

Ernest Simke is a naturalized Filipino citizen and the Honorary Consul General of Israel in the Philippines.

One afternoon, he, with several other persons, went to the Manila International Airport to meet his future son-in-law. He and his group

proceeded to the viewing deck or terrace of the airport.

While walking on the terrace, Simke slipped over an elevation about four (4) inches high at the far end of the terrace. He fell on his back

and broke his thigh bone. The next day, he was operated. Simke then filed an action for damages based on quasi-delict against petitioner Civil Aeronautic

Administration (CAA for brevity)

CFI rendered in Simkesfavor prompting petitioner to appeal to the Court of Appeals. The latter affirmed the trial court's decision

ISSUE: WoN CAA failed to exercise due diligence in avoiding the accident

HELD: YES

Petitioners contention

(1) Invoked the rule re State Immunity:


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UNTENABLE.it can be seen that the CAA is tasked with private or non-governmental functions which operate to remove it from the purview of therule on State immunity from suit. For the correct rule as set forth in the Tedoro case states:

xxx xxx xxx

Not all government entities, whether corporate or non-corporate, are immune from suits.Immunity functions suits is determined by thecharacter of the objects for which the entity was organized. The rule is thus stated in Corpus Juris:

Suits against State agencies with relation to matters in which they have assumed to act in private or non-governmental capacity, and varioussuits against certain corporations created by the state for public purposes, but to engage in matters partaking more of the nature of ordinary

business rather than functions of a governmental or political character, are not regarded as suits against the state. The latter is true, althoughthe state may own stock or property of such a corporation for by engaging in business operations through a corporation, the state divestsitself so far of its sovereign character, and by implication consents to suits against the corporation. (59 C.J., 313) [National AirportCorporation v. Teodoro, supra, pp. 206-207; Emphasis supplied.]

(2) That there was no negligence since the elevation "had a legitimate purpose for being on the terrace and was never intended to trip downpeople and injure them

The question now is Won the construction of the elevation was done in negligent manner

YES.CAA failed to exercise due diligence in the maintenance of the viewing deck. When the trial court wnt for ocular inspection: they found that

the elevation where the plaintiff slipped was the proximate cause of plaintiffs injury, it was dangerous and defective condition of the open terracewhich has remained unrepaired through the years. It has observed the lack of maintenance and upkeep of the MIA terrace, typical of many

government buildings and offices. Aside from the litter allowed to accumulate in the terrace, pot holes cause by missing tiles remained unrepairedand unattented. The several elevations shown in the exhibits presented were verified by this Court during the ocular inspection it undertook. Among

these elevations is the one (Exh. A) where plaintiff slipped. This Court also observed the other hazard, the slanting or sliding step (Exh. B) as onepasses the entrance door leading to the terrace

The legal foundation of CAA's liability for quasi-delict can be found in Article 2176 of the Civil Code which provides that "(w)hoever by act oromission causes damage to another, there being fault or negligence, is obliged to pay for the damage done... As the CAA knew of the existence of thedangerous elevation which it claims though, was made precisely in accordance with the plans and specifications of the building for proper drainageof the open terrace [, its failure to have it repaired or altered in order to eliminate the existing hazard constitutes such negligence as to warrant afinding of liability based on quasi-delict upon CAA.

(3) That respondent Simke was guilty for contributory negligence.

UNTENABLE. Negligence under Article 2179 of the Civil Code contemplates a negligent act or omission on the part of the plaintiff, which

although not the proximate cause of his injury, contributed to his own damage, the proximate cause of the plaintiffs own injury being thedefendant's lack of due care. In the instant case, no contributory negligence can be imputed to the private respondent, considering the followingtest formulated in the early case ofPicart v. Smith, 37 Phil. 809 (1918):

TEST TO DETRMINE NEGLIGENCE :Did the defendant in doing the alleged negligent act use that reasonable care andcaution which an ordinarily prudent man would have used in the same situation? If not, then he is guilty of negligence. The

existence of the negligence in a given case is not determined by reference to the personal judgment of the actor in the situationbefore him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence andprudence and determines liability by that.

Applying the test, did the defendant failed to exercise reasonable care? YES. Simke, ( the victim) could not have reasonably foreseen the harm thatwould befall him, considering the attendant factual circumstances. Even if he had been looking where he was going, the step in question could noeasily be noticed because of its construction. As the trial court found:

In connection with the incident testified to, a sketch, Exhibit O, shows a section of the floorings oil which plaintiff had trippedThis sketch reveals two pavements adjoining each other, one being elevated by four and one-fourth inches than the other. Fromthe architectural standpoint the higher, pavement is a step. However, unlike a step commonly seen around, the edge of theelevated pavement slanted outward as one walks to one interior of the terrace. The length of the inclination between the edges othe two pavements is three inches. Obviously, plaintiff had stepped on the inclination because had his foot landed on the lower

pavement he would not have lost his balance. The same sketch shows that both pavements including the inclined portion are tiledin red cement, and as shown by the photograph Exhibit A, the lines of the tilings are continuous. It would therefore be difficultfor a pedestrian to see the inclination especially where there are plenty of persons in the terrace as was the situation when plaintiffell down. There was no warning sign to direct one's attention to the change in the elevation of the floorings.

Documents

1 Dulay to CAA