Torts &Damages

215

215I. TORTSSan Beda College of Law TORTS AND DAMAGESTORT

An unlawful violation of private right, not created by contract,

and which gives rise to an action

for damages. It is an act or omission producing

an injury to another, without any

previous existing lawful relation

of which the said act or omission

may be said to be a natural

outgrowth or incident.NOTES: An unborn child is NOT

entitled to damages. But

the bereaved parents

may be entitled to

damages, on damages

inflicted directly upon

them. (Geluz vs. CA, 2

SCRA 802) Defendants in tort cases

can either be natural or

artificial being.

Corporations are civilly

liable in the same

manner as natural

persons. Any person who has been

injured by reason of a

tortious conduct can sue

the tortfeasor. The primary purpose of a

tort action is to provide

compensation to a

person who was injured

by the tortious conduct

of the defendant. Preventive remedy is

available in some cases.Classes of Torts:

A. Negligent Torts

B. Intentional Torts

C. Strict LiabilityMEMORY AID IN CIVIL LAWA. NEGLIGENT TORTS Involve voluntary acts or omissions

which result in injury to others

without intending to cause the same

or because the actor fails to exercise

due care in performing such acts or

omissions. NEGLIGENCE The omission of that degree of

diligence which is required by the

nature of the obligation and

corresponding to the circumstances

of persons, time and place. (Article

1173 Civil Code)Kinds of Negligence:

1. Culpa Contractual (contractual

negligence) Governed by CC

provisions on

Obligations and

Contracts,

particularly Arts.

1170 to 1174 of the

Civil Code.2. Culpa Aquiliana (quasi-delict)

Governed mainly by Art. 2176 of the Civil Code3. Culpa Criminal (criminal negligence)

Governed by Art. 365 of the Revised Penal Code.NOTES: The 3 kinds of negligence furnish

separate, distinct, and independent

bases of liability or causes of action. A single act or omission may give rise

to two or more causes of action.Culpa Contractual Culpa AquilianaCIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon

SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora

Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease),

John Stephen

Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony

Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)216San Beda College of Law The foundation of

the liability of the

defendant

is the contractIn breach of contract

committed through

the negligence of

employee, the

employer cannot

erase his primary and

direct liability by

invoking exercise of

diligence of a good

father of a family in

the selection and

supervision of the

employee. It is a separate

source of obligation

independent of

contractIn quasi-delict the

presumptive

responsibility for the

negligence of his

servants can be

rebutted by proof of

the exercise of due

care in their selection

and supervision. Culpa Aquiliana CrimeOnly involves private

concernThe Civil Code by

means of indemnification

merely

repairs the damageIncludes all acts in

which any kind of

fault or negligence

intervenesLiability is direct and

primary in quasidelict

Affect the public

interestThe Revised Penal

Code punishes or

corrects criminal actPunished only if there

is a penal law clearly

covering themLiability of the

employer of the

actor-employee is

subsidiary in crimesQUASI-DELICT

Whoever by act or omission causes damage to another, there being fault

or negligence is obliged to pay for

the damage done. (Article 2176 Civil

Code)Essential Requisites for a quasidelictual

action:

1.

Act or omission constituting fault or negligence; 2. Damage caused by the said act or

omission; and 3. Causal relation between the damage

and the act or omission.Tests of Negligence

1. Did the defendant in doing the alleged negligent act use the

reasonable care and caution which

an ordinarily prudent person would

have used in the same situation? MEMORY AID IN CIVIL LAW If not then he is guilty of

negligence. 2. Could a prudent man, in the case

under consideration, foresee harm as

a result of the course pursued? If so, it was the duty of the actor

to take precautions to guard

against harm. NOTES: Negligence is a conduct - the

determination of the existence of

negligence is concerned with what

the defendant did or did not do The state of mind of the actor is

not important; good faith or use of

sound judgment is immaterial. The

existence of negligence in a given

case is not determined by reference

to the personal judgment but by the

behavior of the actor in the situation

before him. (Picart vs. Smith) Negligence is a conduct that creates

an undue risk of harm to others. The determination of negligence is a

question of foresight on the part of

the actor FORESEABILITY. Even if a particular injury was

not foreseeable, the risk is still

foreseeable if possibility of

injury is foreseeable. Forseeability involves the

question of PROBABILITY, that is,

the existence of some real

likelihood of some damage and

the likelihood is of such

appreciable weight reasonably to

induce, action to avoid it. Calculation of Risk

Interests are to be balanced only in the sense that the purposes of the

actor, the nature of his act and the

harm that may result from action or

inaction are elements to be

considered.Circumstances to consider in

determining negligence: (PEST-GAP)1. Time

2. Place

3. EmergencyCIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)217San Beda College of Law Emergency ruleGENERAL RULE: 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.EXCEPTION: When the emergency

was brought by the individuals own

negligence. (Valenzuela vs. CA 253

SCRA 303).4. Gravity of Harm to be

avoided5. Alternative Course of Action

If the alternative presented to the actor is too

costly, the harm that may result

may be still be considered

unforeseeable to a reasonable

man.

6. Social value or utility of activity

7. Person exposed to the riskGOOD FATHER OF A FAMILY (pater

familias):

- this is the standard of conduct used in

the Philippines

- a man of ordinary intelligence and

prudence or an ordinary reasonable

prudent man

a reasonable man deemed to have

knowledge of the facts that a man should

be expected to know based on ordinary

human experience. (PNR vs IAC, 217

SCRA 409)

- a prudent man who is expected to know

the basic laws of nature and physics, e.g.

gravity.SPECIAL RULES

1. Children The action of the child will not

necessarily be judged according to

the standard of an adult. But if the

minor is mature enough to

understand and appreciate the

nature and consequence of his

actions, he will be considered

negligent if he fails to exercise due MEMORY AID IN CIVIL LAWcare and precaution in the

commission of such acts.NOTES: The law fixes no arbitrary age at

which a minor can be said to have

the necessary capacity to understand

and appreciate the nature and

consequence of his acts. (Taylor vs.

Meralco, 16 Phil 8) Applying the provisions of the

Revised Penal Code, Judge Sangco

takes the view that a child who is 9

or below is conclusively presumed to

be incapable of negligence. In the

other hand, if the child is above 9

years but below 15, there is a

disputable presumption of absence

of negligence. Absence of negligence does not

necessarily mean absence of

liability. Liability without fault: a child under

9 years can still be subsidiarily liable

with his property (Art. 100, RPC) Absence of negligence of the child

may not excuse the parents from

their vicarious liability under Art.

2180 NCC or Art. 221 FC.2. Physical Disability

Mere weakness of a person will not be an excuse in negligence

cases. However if defect amounts to a

real disability the standard of

conduct is that of a reasonable

person under like disability.3. Experts and professionals

They should exhibit the care and skill of one who is ordinarily

skilled in the particular field that

he is in. When a person holds himself out

as being competent to do things

requiring professional skill, he

will be held liable for negligence

if he fails to exhibit the care and

skill of one ordinarily skilled in

the particular work which he

attempts to do.CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)218San Beda College of Law An expert will not be judged

based on what a non-expert can

foresee. The rule regarding experts is

applicable not only to

professionals who have

undergone formal education.4. Nature of activity

There are activities which by nature impose duties to exercise

a higher degree of diligence.Examples:a. Banks, by the very

nature of their work, are expected to exercise the

highest degree of

diligence in the selection

and supervision of their

employees.b. Common carriers are

required to exercise extraordinary diligence

in the vigilance over

their passengers and

transported goods.

(Article 1733 Civil Code).5. IntoxicationGENERAL RULE: Mere intoxication is

not negligence, nor does the mere fact

of intoxication establish want of ordinary

care. But it may be one of the

circumstances to be considered to prove

negligence. EXCEPTION: Under Art. 2185 of the

Civil Code, 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.6. Insanity

The insanity of a person does

not excuse him

or his guardian

from liability

based on quasidelict. Bases for

holding an

insane person

liable for his

tort:MEMORY AID IN CIVIL LAWa.Where one of two innocent persons

must suffer a loss, it should be

borne by the one who occasioned

it.b. To induce those interested in the

estate of the insane person to

restrain and control him.c.The fear that an insanity would

lead to false claims of insanity

and avoid liability.7. Women In determining the

question of contributory

negligence in performing

such act, the age, sex,

and condition of the

passengers are

circumstances

necessarily affecting the

safety of the passenger,

and should be

considered. (Cangco vs.

Manila Railroad Co. GR

No.12191, October 14,

1918) Although there is no

unequivocal statement of

the rule, Valenzuela vs.

CA 253SCRA303 appears

to require a different

standard of care for

women under the

circumstances indicated

therein. However, Dean Guido

Calabresi believes that

there should be a

uniform standard

between a men and a

women.Other Factors to Consider in

Determining Negligence:

A. VIOLATION OF RULES AND STATUTES

1. StatutesGENERAL RULE: Violation of a

statutory duty is NEGLIGENCE PER SE

(Cipriano vs. CA, 263SCRA711). When the

Legislature has spoken, the standard of

care required is no longer what a reasonably prudent man would do under CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)219San Beda College of Law the circumstances but what the

Legislature has commanded. EXCEPTIONS:

a. When unusual conditions

occur and strict observance may

defeat the purpose of the rule and

may even lead to adverse results.

b. When the statute

expressly provides that violation of

a statutory duty merely establishes

a presumption of negligence.NOTE: Rule as to proof of proximate

causeGENERAL RULE: Plaintiff must show

that the violation of the statute is the

proximate or legal cause of the injury

or that it substantially contributed

thereto. (Sanitary Steam Laundry, Inc.

vs. CA 300SCRA20)EXCEPTION: In cases where the

damage to the plaintiff is the damage

sought to be prevented by the statute.

In such cases, proof of violation of

statute and damage to the plaintiff

may itself establish proximate cause.

(Teague vs. Fernandez 51SCRA181).2.Administrative Rule

Violation of a rule

promulgated

by

administrative

agencies is not

negligence per

se but may be

EVIDENCE OF

NEGLIGENCE.3.Private Rules of Conduct.

Violation of rules imposed

by private

individuals

(e.g.

employers) is

merely a

POSSIBLE

EVIDENCE OF

NEGLIGENCE.MEMORY AID IN CIVIL LAWB. PRACTICE AND CUSTOM Compliance with the practice and

custom in a community will not

automatically result in a finding

that the actor is not guilty of

negligence. Non-compliance with

the practice or custom in the

community does not necessarily

mean that the actor was negligent. In Yamada vs. Manila Railroad Co.,

the owner of an automobile struck

by a train while crossing the tracks

sought to establish absence of

negligence of its driver by

evidence of a custom of

automobile drivers of Manila by

which they habitually drove their

cars over the railroad crossings

without slackening speed. The SC

rejected the argument by ruling

that: a practice which is dangerous

to human life cannot ripen into

custom which will protect anyone

who follows it. C. COMPLIANCE WITH STATUTES

Compliance with a statute is not conclusive that there was no

negligence. Example: A defendant can still be

held liable for negligence even if

he can establish that he was

driving below the speed limit.

Compliance with the speed limit is

not conclusive that he was not

negligently driving his car.Gross Negligence - Negligence where

there is want of even slight care and

diligence. PROOF OF NEGLIGENCEGENERAL RULE: If the plaintiff alleged in his

complaint that he was damaged

because of the negligent acts of

the defendant, the plaintiff has

the burden of proving such

negligence. (Taylor vs.

MERALCO 16Phil8) The quantum of proof required is

preponderance of evidence. CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)220San Beda College of Law (Rule 133 Revised Rules of

Court)EXCEPTIONS: Exceptional cases when

the rules or the law provides for cases

when negligence is presumed.

A. Presumptions of Negligence

B. Res Ipsa LoquiturA. Presumptions of Negligence1. In motor vehicle

mishaps, the owner is presumed negligent if he

was in the vehicle and he

could have used due

diligence to prevent the

misfortune. (Article 2184

Civil Code)2. It is disputably presumed

that a driver was negligent if he had been

found guilty of reckless

driving or violating

traffic regulations at

least twice for the next

preceding two months.

(Article 2184 Civil Code)3. The driver of a motor

vehicle is presumed negligent if at the time

of the mishap, he was

violating any traffic

regulation. (Article 2185

Civil Code)4. GENERAL RULE: Prima

facie presumption of negligence of the

defendant arises if death

or injury results from his

possession of dangerous

weapons or substance.EXCEPTION: When such possession or

use is indispensable to his occupation or

business. (Article 2188 Civil Code)5. GENERAL RULE:

Presumption of negligence of the

common carrier arises in

case of loss, destruction

or deterioration of the

goods, or in case of

death or injury of

passengers. EXCEPTION: Upon proof of exercise of

extraordinary diligence. MEMORY AID IN CIVIL LAWB. Res Ipsa Loquitur The thing or transaction speaks

for itself. It is a rule of evidence peculiar

to the law of negligence which

recognizes that prima facie

negligence may be established in

the absence of direct proof, and

furnishes a substitute for specific

proof of negligence.Requisites of Res Ipsa Loquitor:

1. The accident was of a kind which

ordinarily does not occur in the

absence of someones negligence; 2. The instrumentality which

caused the injury was under the exclusive control and management of

the person charged with negligence;

and

3. The injury suffered must not

have been due to any voluntary

action or contribution on the part of

the person injured; absence of

explanation by the defendant. In Africa vs. Caltex (Phil.) Inc.

Mar 31, 1966, defendant Caltex

was liable for damage done to

the property of its neighbors

when fire broke out in a Caltex

service station. The gasoline

station, with all its appliances,

equipment and employees, was

under the control of the

defendant. The persons who

knew how the fire started were

the defendant and its

employees, but they gave no

explanation whatsoever. The doctrine is not applicable if

there is direct proof of absence

or presence of negligence. (S.D.

Martinez, et al vs. William Van

Buskirk)CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)221San Beda College of Law AFFIRMATIVE DUTIES AND

MISCELLANEOUS ACTIVITIES:

1. Duty to RescueA. Duty to the rescuer

The defendants are liable for the injuries to persons who

rescue people in distress

because of the acts or

omissions of the said

defendants. There is liability to the

rescuer and the law does not

discriminate between the

rescuer oblivious to the peril

and the one who counts the

costs. The risk of rescue, if only not

wanton, is born of the

occasion. One who was hurt trying to

rescue another who was

injured through negligence

may recover damages.

(Santiago vs. De leon CA-GR

No.16180-R March 21, 1960) Danger of personal injury or

death.B. Duty to rescueGENERAL RULE: There is no general

duty to rescue; a person is not liable for

quasi-delict even if he did not help a

person in distress.EXCEPTIONS: A limited duty to rescue

is imposed in certain cases:

Abandonment of persons in danger and

abandonment of ones own victim is

considered, under certain circumstances

as a crime against security (Article 275

RPC); and

No driver of a motor vehicle concerned

in a vehicular accident shall leave the

scene of the accident without aiding the

victim unless he is excused from doing

so. (Section 55 RA 4136 [Land

Transportation and traffic Code])2. Owners, Proprietors and Possessors of PropertyMEMORY AID IN CIVIL LAWGENERAL RULE: The owner has no duty

to take reasonable care towards a

trespasser for his protection or even to

protect him from concealed danger.

NOTE: Damage to any person resulting

from the exercise of any rights of

ownership is damage without injury

(Damnum absque injuria)EXCEPTIONS:

a. Visitors and tolerated possession The owner is still liable if the

plaintiff is inside his property by

tolerance or by implied permission. Owners of buildings or

premises owe duty of care to

visitors.Doctrine of Attractive Nuisance

One who maintains on his premises

dangerous instrumentalities or

appliances of a character likely to

attract children in play, and who

fails to exercise ordinary care 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.

NOTE: A swimming pool or pond or

reservoir of water is NOT considered

attractive nuisance. (Hidalgo

Enterprises vs. Baladan 91 Phil 488)State of Necessity

The owner of a thing has no right to

prohibit the interference of another

with the same if the interference is

necessary to avert imminent danger

and the threatened damage,

compared to the damage arising to

the owner from the interference, is

much greater. (Article 432 Civil

Code) It is also a recognized justifying

circumstance under the RPC. In both the Civil Code and the

RPC, the owner may demand from

the person benefited, indemnity for

the damages.Use of properties that injures another An owner cannot use his property in such a manner as to injure the CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)222San Beda College of Law rights of others. (Article 431

Civil Code). Hence the exercise of the right

of the owner may give rise to an

action based on quasi-delict if

the owner negligently exercises

such right to the prejudice of

another.Liability of Proprietors of buildings

New Civil Code include provisions that apply to proprietors of a

building or structure which

involve affirmative duty of due

care in maintaining the same:

Articles 2190 and 2191. Third persons who suffered

damages may proceed only

against the engineer or architect

or contractor if the damage

referred to in Articles 2190 and

2191should be a result of any

defect in construction. Nevertheless, actions for

damages can still be maintained

under Article 2176 for damages

resulting from proprietors

failure to exercise due care in

the maintenance of his building

and that he used his property in

such a way that he injured the

property of another.3. Employers and Employees

A. Employers Actions for quasi-delict can

still be maintained even if

employees compensation is provided

for under the Labor Code. In quasi-delictual actions

against the employer, the employee

may use the provisions of the Labor

Code which imposes upon the

employer certain duties with respect

to the proper maintenance of the

work place or the provisions of

adequate facilities to ensure the

safety of the employees. Articles 1711 and 1712 of

the Civil Code impose liability

without fault on the part of the

employers.B. EmployeesMEMORY AID IN CIVIL LAW Employees are bound to exercise due

care in the performance of their

functions for the employers; absence

such due care, the employee may be

held liable.4. Banks The business of banks is one

affected by public interest.

Because of the nature of its

functions, a bank is under

obligation to treat the

accounts of its depositors with

meticulous care, always

having in mind the fiduciary

nature of their relationship.

(PBC vs. CA [1997])5. Common carriers

From the nature of their business and for reasons of

public policy, they are bound

to exercise extraordinary

diligence in the vigilance over

the goods and the safety of the

passengers. The case against the common

carrier is for the enforcement

of an obligation arising from

breach of contract. The same act which breached

the contract may give rise to

an action based on quasi

delict. (Air France vs

Carrascoso, L21438, Sept. 28,

1996)6. Doctors

A. STANDARD OF CARE The proper standard is

whether, the physician if a

general practitioner, has

exercised the degree of care

and skill of the average

qualified practitioner, taking

into account the advances in

the profession. A physician who holds himself

out as a specialist should be

held to the standard of care

and skill of the average

member of the profession

practicing the specialty, taking CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)223San Beda College of Law into account the advances in

the profession.B. THE CAPTAIN OF THE SHIP DOCTRINE

The head surgeon is made liable for everything that goes

wrong within the four corners

of the operating room. It enunciates the liability of

the surgeon not only for the

wrongful acts of those under

his physical control but also

those wherein he has extension

of control.C. NOT WARRANTORS

Physicians are not warrantors D. PROOFof cures or insurers against

personal injuries or death of

the patient. Expert testimony should be

offered to prove that the

circumstances are constitutive

of conduct falling below the

standard of care employed by

other physicians in good

standing when performing the

same operation. Medical malpractice can also

be established by relying on

the doctrine of res ipsa

loquitor; in which case the

need of expert testimony is

dispensed with because the

injury itself provides the proof

of negligence. (Ramos vs. CA,

GR No.124354, December 29,

1999) Example: The doctrine was

applied in a case of removal of

the wrong part of the body

when another part was

intended. Two pronged evidence:

a. Evidence as to the

recognized standards of the medical

community in the particular kind of

case; and

b. A showing that the

physician departed from this

standard in his treatment. MEMORY AID IN CIVIL LAW Four elements

in medical

negligence

cases: duty,

breach, injury

and proximate

causationE. LIABILITY OF HOSPITALS AND

CONSULTANTS There is no employer-employee

relationship between the

hospital and a physician

admitted in the said hospitals

medical staff as an active or

visiting consultant which would

hold the hospital liable solidarily

liable for the injury suffered by a

patient under Article 2180 of the

Civil Code. (Ramos vs. CA GR No

124354, April 11, 2002) The contract between the

consultant and the patient is

separate and distinct the

contract between the hospital

and the patient. The first has

for its object the rendition of

medical services by the

consultant to the patient, while

the second concerns the

provision by the hospital of

facilities and services by its staff

such as nurses and laboratory

personnel necessary for the

proper treatment of the patient.

(Ramos vs. CA GR No 124354,

April 11, 2002) 7. Lawyers

An attorney is not bound to exercise extraordinary

diligence but only a reasonable

degree of care and skill, having

reference to the business he

undertakes to do.DEFENSES IN NEGLIGENCE CASES

Kinds of defenses:

A. Complete completely bars recovery

B. Partial mitigates liability1. PLAINTIFFS CONDUCT AND

CONTRIBUTORY NEGLIGENCECIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)224San Beda College of Law a. Plaintiffs own

negligence as the proximate

cause When the plaintiffs own

negligence was the immediate and

proximate cause of his injury, he

cannot recover damages. (Article

2179 Civil Code)

b. Contributory

negligence Conduct on the part of the

injured party contributing as a

legal cause to the harm he has

suffered which falls below the

standard to which he is required to

conform for his own protection.

(Valenzuela vs. CA 253SCRA303) If the plaintiffs negligence was

only contributory, the immediate

and proximate cause of the injury

being the defendants lack of due

care, the plaintiff may recover

damages but the courts shall

mitigate the damages to be

awarded (Article 2179 Civil Code). Doctrine of Comparative

Negligence The

relative degree of negligence of

the parties is considered in

determining whether and to what

degree, either should be

responsible for his negligence

(apportionment of damages). This is

the doctrine being applied in our

jurisdiction wherein the

contributory negligence of the

plaintiff does not completely bar

recovery but merely results in

mitigation of liability; it is a partial

defense. The

court is free to determine the

extent of the mitigation of the

defendants liability depending

upon the circumstances.2. IMPUTED CONTRIBUTORY

NEGLIGENCE Negligence is imputed if the

actor is different from the person

who is being made liable.MEMORY AID IN CIVIL LAW The defendant will be

subject to mitigated liability even if

the plaintiff was not himself

personally negligent but because the

negligence of another is imputed to

the plaintiff. It is applicable if the

negligence was on the part of the

person for whom the plaintiff is

responsible, and especially, by

negligence of an associate in the

transaction where he was injured.3. FORTUITOUS EVENTS

Essential requisites:a.The cause of the unforeseen and

unexpected occurrence, or of the

failure of the debtor to comply

with his obligation, must be

independent of the human will;

b. It must be impossible to

foresee the event which

constitutes the caso fortuito, or

if it can be foreseen, it must be

impossible to avoid;c.The occurrence must be such as

to render it impossible for the debtor to fulfill his obligation in a

normal manner; and

d. The obligor must be free

from any participation in the

aggravation of the injury resulting

to the creditor.NOTE: When an act of God concurs

with the negligence of defendant to

produce an injury, the defendant is

liable if the injury would not have

resulted but for his own negligent

conduct or omission. The whole

occurrence is humanized and removed

from the rules applicable to acts of

God. (NAPOCOR vs. CA [1993])GENERAL RULE: It is a complete

defense and a person is not liable if

the cause of the damage is a fortuitous

event.EXCEPTION: It is merely a partial

defense and the courts may mitigate

the damages if the loss would have

resulted in any event (Art. 2215(4)

Civil Code). 4. ASSUMPTION OF RISKCIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)225San Beda College of Law Volenti non fit injuria: One is not

legally injured if he has consented

to the act complained of or was

willing that it should occur. It is a complete defense. Elements:a. The plaintiff must know that

the risk is present;b. He must further understand

its nature; and thatc. His choice to incur it is free

and voluntary. KINDS:a. Express

waiver of

the right

to recover There is assumption

of risk if the

plaintiff, in advance

has expressly waived

his right to recover

damages for the

negligent act of the

defendant.NOTE: A person cannot contract away his

right to recover damages resulting from

negligence. Such waiver is contrary to

public policy and cannot be allowed.

However, the waiver contemplated by

this prohibition is the waiver of the right

to recover before the negligent act was

committed.If waiver was made after the cause

of action accrued, the waiver is valid and

may be construed as a condonation of

the obligation.b. Implied

Assumptio

nsi. Dangerous Conditions

A person who, knowing that he is exposed to a dangerous condition

voluntarily assumes the risk of such

dangerous condition may not recover MEMORY AID IN CIVIL LAWfrom the defendant who maintained

such dangerous conditions. Example: A person who maintained

his

house

near

a

railroad

track

assumes

the

usual

dangers

attendant

to

the opera-tion of a locomotive.

(Rodrigueza vs. Manila Railroad Co.,

GR No. 15688, Nov. 19, 1921).ii. Contractual Relations There may be implied

assumption of risk if the plaintiff

entered into a contractual relation

with the defendant. By entering into

a relationship freely and voluntarily

where the negligence of the

defendant is obvious, the plaintiff

may be found to accept and consent

to it. EXAMPLES: a) The employees assume the

ordinary risks inherent in the

industry in which he is employed. - As to abnormal risks, there

must be cogent and convincing

evidence of consent. b) When a passenger boards a

common carrier, he takes the risks

incidental to the mode of travel he

has taken.iii. Dangerous Activities Persons who voluntarily

participate in dangerous activities

assume the risks which are usually

present in such activities. EXAMPLE: A professional

athlete is deemed to assume the

risks of injury to their trade.iv. Defendants negligence When the plaintiff is aware of

the risk created by the defendants

negligence, yet he voluntarily

decided to proceed to encounter it,

there is an implied admission.CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)226San Beda College of Law EXAMPLE: If the plaintiff has

been supplied with a product which

he knows to be unsafe, he is deemed

to have assumed the risk of using

such unsafe product.5. DEATH OF THE DEFENDANT

Death of the defendant does not extinguish the obligation based

on quasi-delict. An action survives even if the

defendant dies during the

pendency of the case if the case

is an action to recover for an

injury to persons or property by

reason of tort committed by the

deceased. It is no defense at all.6. PRESCRIPTION An action based on quasi-delict

prescribes in four years from the

date of the accident. (Article

1146 Civil Code)Relations Back Doctrine

An act done at one time is considered by fiction of law to have

been done at some antecedent

period. (Allied Banking Corp vs. CA,

1989) EXAMPLE: A doctor negligently

transfused blood to a patient that

was contaminated with HIV. If the

effect became apparent only after

five (5) years, the four (4) year

prescriptive period should commence

only when it was discovered.7. INVOLUNTARINESS It is a complete defense in quasidelict

cases

and

the

defendant

is

therefore

not

liable

if

force

was

exerted

on him. (Aquino, Torts

and Damages) EXAMPLE: When the defendant

was forced to drive his vehicle by

armed men. He was, at pain of

death, forced to drive at a very

fast clip because the armed men

were escaping from the MEMORY AID IN CIVIL LAWpolicemen. The defendant

cannot be held liable, if a

bystander is hit as a

consequence. CAUSATIONProximate Cause

That cause which in natural and continuous sequence, unbroken

by any efficient intervening

cause, produces the injury,

without which the result would

not have occurred. Remote Cause

That cause which some independent force merely took

advantage of to accomplish

something not the natural effect

thereof.Nearest Cause That cause which is the last link

in the chain of events; the

nearest in point of time or

relation. Proximate cause is not

necessarily the nearest cause

but that which is the procuring

efficient and predominant

cause.Concurrent Causes The actor is liable even

if the active and

substantially

simultaneous operation

of the effects of a third

persons innocent,

tortious or criminal act

is also a substantial

factor in bringing about

the harm so long as the

actors negligent

conduct actively and

continuously operate to

bring about harm to

another. (Africa vs.

Caltex) Where several causes

producing the injury are

concurrent and each is CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)227San Beda College of Law an efficient cause

without which the injury

would not have

happened, the injury

may be attributed to all

or any of the causes and

recovery may be had

against any or all of the

responsible persons. Where the concurrent or

successive negligent

acts or omissions of two

or more persons,

although acting

independently, are in

combination the direct

and proximate cause of

a single injury to a third

person, and it is

impossible to determine

what proportion each

contributed to the

injury, either of them is

responsible for the

whole injury, even

though his act alone

might not have caused

the entire injury; they

become joint tortfeasors

and are

solidarily liable for the

resulting damage under

Article 2194 of the Civil

Code.NOTE: Primary cause remains the

proximate cause even if there is an

intervening cause which merely

cooperated with the primary cause and

which did not break the chain of

causation.Tests of Proximate Cause

Two-part test1. Cause-in-fact Test

2. Policy TestNOTE: In determining the proximate

cause of the injury, it is first necessary

to determine if the defendants

negligence was the cause-in-fact of the

damage to the plaintiff. (Cause-in-fact

test)MEMORY AID IN CIVIL LAW If the

defendants negligence was not

the cause-in-fact, the inquiry

stops. If it is, the

inquiry shifts to the question of limit

of the defendants liability. (Policy

test)CAUSE-IN-FACT TESTS:

1. But-For Test The defendants conduct is the

cause-in-fact if damage would

not have resulted had there been

no negligence on the part of the

defendant. Conversely,

defendants negligent conduct is

not the cause in fact of the

plaintiffs damage if the

accident could not have been

avoided in the absence thereof.2. Substantial Factor test The conduct is the cause-in-fact

of the damage if it was a

substantial factor in producing

the injuries. In order to be a substantial

factor in producing the harm,

the causes set in motion by the

defendant must continue until

the moment of the damage or at

least down the setting in motion

of the final active injurious force

which immediately produced or

preceded the damage.NOTE: If the defendants conduct was

already determined to be the cause in

fact of the plaintiffs damage under the

but for test, it is necessarily the cause in

fact of the damage under the substantial

factor test.3. NESS Test The candidate condition may still

be termed as a cause where it is

shown to be a necessary element

in just one of several co-present

causal set each independently

sufficient for the effect.Two ways by which co-presence may

manifest itself:a. Duplicative causation

CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)228San Beda College of Law When two or more sets operate

simultaneously to produce the

effect; the effect is overdetermined.

b.

Pre-emptive causation When, though coming about first

in time, one causal set trumps

another potential set lurking in the

background; the causal potency of

the latter is frustrated. Multiple causation

If there are a number of candidate conditions, which,

taken one at a time, would not

in fact have been sufficient to

cause the accident and the

accident was a cumulative effect

of all the candidate conditions.Policy Tests:

1. Foreseea

bility Test

2. Natural

and Probable Consequence Test

3. Natural

and Ordinary or Direct Consequence

Test

4. Hindsight

Test

5. Orbit of

Risk Test6. Substanti

al Factor

TestPolicy Tests may be divided into Two

Groups:1. FORESIGHT PERSPECTIVE/

FORESEEABILITY TESTS The defendant is not liable for

the unforeseeable consequences

of his acts Liability is limited within the risk

created by defendants negligent

acts.2. DIRECT PERSEPECTIVE/ DIRECT

COSEQUENCES TESTS The defendant

is liable for

damages which

are beyond the

risk.MEMORY AID IN CIVIL LAW Direct

consequences

are those

which follow in

sequence from

the effect of

defendants act

upon

conditions

existing and

forces already

in operation at

the time

without

intervention of

any external

forces, which

come into

active

operation

later.Tests applied in the Philippines: New Civil Code has a

chapter on Damages

which specifies the kind

of damage for which the

defendant may be held

liable and the extent of

damage to be awarded

to the plaintiff.Cause-in-fact Tests:

1. But-for test

2. Substantial Factor test

3. NESS test Policy

test:

The

directne

ss

approac

h is

being

applied

in this

jurisdict

ion.NOTE: The definition of proximate cause

which includes the element of foresight

is not consistent with the express

provision of the Article 2202 of the New

Civil Code; a person may be held liable CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)229San Beda College of Law whether the damage to the plaintiff may

be unforeseen.

Cause and Conditions It is no longer practicable to

distinguish between cause and

condition. The defendant may be liable even if

only created conditions, if the

conditions resulted in harm to either

person or property. EXAMPLES of Dangerous Conditions:

1. Those that are inherently

dangerous2. Those where a

person places a

thing which is

not dangerous in

itself in a

dangerous

position.3. Those involving

products and

other things

which are

dangerous

because they are

defective.Efficient Intervening Cause

One which destroys the causal connection between the

negligent act and the injury and

thereby negatives liability. There is NO efficient intervening

cause if the force created by the

negligent act or omission have

either:1. Remained active itself, or2. Created another force which

remained active until it directly caused the result, or

3. Created a new active risk of

being acted upon by the active force

that caused the result.EXAMPLE: The medical findings, show

that the infection of the wound by

tetanus was an efficient intervening

cause later or between the time Javier

was wounded to the time of his death.

(People vs. Rellin 77 Phil 1038) NOTES: MEMORY AID IN CIVIL LAWCIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law) A cause

is not an

interveni

ng cause

if it was

already

in

operatio

n at the

time the

negligent

act is

committ

ed. Foreseea

ble

interveni

ng causes

cannot

be

consider

ed

sufficient

interveni

ng

causes. The

intervent

ion of

unforese

en and

unexpect

ed cause

is not

sufficient

to

relieve

the

wrongdo

er from

conseque

nces of

negligenc

e if such

negligenc

e

directly

and

proximat

ely

cooperat

es with

the

independ230San Beda College of Law ent

cause in

the

resulting

injury. CONTRIBUTORY NEGLIGENCE

A. Plaintiffs negligence is the cause Plaintiffs

negligence is

not contributory

if it is necessary

and sufficient to

produce the

result. EXAMPLES:

1. Only the plaintiff

was

negligent

.2. Defendan

ts

negligenc

e is not a

part of

the

causal

set which

is a part

of the

causal

chain.3. Plaintiff

s

negligenc

e was

preemptive

in

nature.B. Compound Causes P

l

a

i

n

t

i

f

f

MEMORY AID IN CIVIL LAWt




John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)s

n

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edu

p

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f

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c

t

,th

a

tit

,i231San Beda College of Law is

s

u

f

f

i

c

i

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n

tto

b

r

i

n

gab

o

u

tth

eef

f

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c

tbu

thi

sne

g

lMEMORY AID IN CIVIL LAWCIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)i

g

e

n

c

eoc

c

u

r

ssi

m

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a

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e

o

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hth

ede

f

e

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d

a

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t

;th

e232San Beda College of Law l

a

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l

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g

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eis

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q

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tbu

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cMEMORY AID IN CIVIL LAWCIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)e

s

s

a

r

yto

b

r

i

n

gab

o

u

tth

eef

f

e

c

tbe

c

a

u

s

eda

m

a

g

ewo

u

l

d233San Beda College of Law st

i

l

l

h

a

v

ere

s

u

l

t

e

ddu

eto

t

h

ene

g

l

i

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e

n

c

eof

t

h

epl

a

iMEMORY AID IN CIVIL LAWCIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)n

t

i

f

f

. P

l

a

i

n

t

i

f

f

s

n

e

g

l

i

g

e

n

c

e

i

s

n

o

t

m

e

r

e

l

y

c

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n

t

r

i

b

u

t

o

r

y234San Beda College of Law b

e

c

a

u

s

e

i

t

i

s

a

c

o

n

c

u

r

r

i

n

g

p

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i

m

a

t

e

c

a

u

s

e

. N

ore

c

o

v

e

rMEMORY AID IN CIVIL LAWC. Part of the same causal

set Neither plaintiffs negligence

nor defendants negligence

alone is sufficient to cause

the injury; the effect would

result only if both are present

together with normal

background conditions. Negligence of the plaintiff

cooperated with the CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)y

c

a

nbe

h

a

d

.(A

q

u

i

n

o

,To

r

t

san

dDa

m

a

g

e

s

)235San Beda College of Law negligence of the defendant

in order to bring about the

injury; determination of

proximate cause is only a

matter of degree of

participation.D. Defendants Negligence

is the Only cause Defendants negligence was

sufficient AND necessary to

bring about the injury. However, if plaintiffs

negligence increased or

aggravated the resulting

damage or injury liability of

the defendant should also be

mitigated under contributory

negligence rule or under the

doctrine of avoidable

consequences.Doctrine of Last Clear Chance or

Discovered Peril 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 plaintiffs

negligence.Alternative Views:

1. Prevailing view Doctrine is applicable in

this jurisdiction. Even if plaintiff was

guilty of antecedent

negligence, the

defendant is still liable

because he had the last

clear chance of avoiding

the injury.2. Minority View The historical function of the

doctrine was to mitigate the

harshness of the common law

rule of contributory

negligence which prevented

any recovery at all by the MEMORY AID IN CIVIL LAWplaintiff who was also

negligent even if his

negligence was relatively

minor as compared with the

wrongful act or omission of

the defendant. The doctrine has no role in

this jurisdiction where

common law concept of

contributory negligence has

itself been rejected in Article

2179 of the Civil Code.3. Third View There can be no conflict

between the doctrine of last

clear chance and doctrine of

comparative negligence if the

former is viewed as a rule or

phrase of proximate cause; However, the doctrine of last

clear chance is no longer

applicable if the force

created by the plaintiffs

negligence continues until the

happening of the injurious

event.Cases when the doctrine was held

inapplicable (PICCA)1. If the p laintif f was not

negligent.2. The party charged is required to

act i nstantaneously , and if the injury cannot be avoided by the

application of all the means at

hand after the peril is or should

have been discovered.3. If defendants negligence is a

c oncurrent cause and which was still in operation up to the time

the injury was inflicted.4. Where the plaintiff, a passenger,

filed an action against a carrier based on c ontract. 5. If the actor, though negligent,

was not a ware of the danger or risk brought about by the prior

fraud or negligent act.B. INTENTIONAL TORTS

Include conduct where the actor




John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)236San Beda College of Law desires to cause the

consequences of his

act or believes that

the consequences

are substantially

certain to result

from it. They are found in Chapter 2 of the

Preliminary Title of

the NCC entitled

Human Relations.

Although this chapter

covers negligent

acts, the torts

mentioned herein

are mostly

intentional in nature

or torts involving

malice or bad faith. HUMAN RELATIONS

1. Principle of Abuse of Rights (ART.19) Elements:

a. Legal right or duty; b. The right or duty is exercised in bad

faith; and c. For the sole intent of prejudicing or

injuring another. E

X

A

M

P

L

E

:

If

t

h

e

p

ri

n

c

i

p

a

l MEMORY AID IN CIVIL LAWCIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)u

n

r

e

a

s

o

n

a

b

l

y

t

e

r

m

i

n

a

t

e

d

a

n

a

g

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n

c

y

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g

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e

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n

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f

o

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lf

i

s

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r

e

a

s

o

n

s237San Beda College of Law NOTE: This rule is a departure from the

traditional view that a person is not

liable for damages resulting from the

exercise of ones right.2. Article 20 of the Civil Code Speaks

of the

general

sanction

for all

other

provisio

ns of

law

which

do not

especial

ly

provide

for their

own

sanction

..

(

V

a

l

e

n

z

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l

a

v

s

.

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,

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A

1

)MEMORY AID IN CIVIL LAWNOTE: Article 20 does not distinguish;

the act may be done willfully or

negligently.3. Acts contra bonus mores (Article 21

Civil Code) Elements:

a. Act which is legal; b. The act is contrary to morals, good

customs, public order or public policy; and

c. The act is done with intent to injure.

NOTE: Damages are recoverable even if

no positive law was violated. Kinds:a. Breach of promise to marryGENERAL RULE: Breach of promise to

marry by itself is not actionable.EXCEPTION: In cases where there is

another act independent of the breach

of promise to marry which gives rise to

liability:1. Cases where there was financial

damage.2. Social humiliation caused to one

of the parties. 3. Where there was moral

seduction.NOTES: Moral seduction, although not

punishable, connotes the idea of

deceit, enticement, superior power

or abuse of confidence on the part of

the seducer to which the woman has

yielded. (Gashem Shokat Baksh vs.

CA) Sexual intercourse is not by itself a

basis for recovery; damages could

only be awarded if the sexual

intercourse is not a product of

voluntariness or mutual desire.b. Seduction without breach of

promise to marryCIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)238San Beda College of Law Seduction, by itself, is also an

act contrary to morals, good

customs and public policy. The defendant is liable if he

employed deceit,

enticement, superior power

or abuse of confidence in

successfully having sexual

intercourse with another even

if he satisfied his lust without

promising to marry the

offended party. It may not even matter that

the plaintiff and the

defendant are of the same

gender.c. Sexual assault Defendant is liable for all

forms of sexual assault

including crimes defined

under the RPC as rape, acts

of lasciviousness and

seduction.d. Desertion by a spouse A spouse has a legal

obligation to live with his/her

spouse. If a spouse does not perform

his/her duty to the other, he

may be liable for damages for

such omission because the

same is contrary to law,

morals, good customs and

public policy.e. Trespass and Deprivation of

Property 2 KINDS:1) Trespass to and/or

deprivation of real propertyMEMORY AID IN CIVIL LAW Liability for damages under

the RPC and Article 451 of the Civil

Code requires intent or bad faith. Article 448 of the Civil Code

in relation to Article 456 does not

permit action for damages where the

builder, planter, or sower acted in

good faith. The landowner is limited

to the options given to him under

article 448, that is to appropriate

whatever is built or planted or to

compel the builder or planter to

purchase the portion encroached

upon. (Aquino, Torts and Damages) A builder in good faith who

acted negligently may be held liable

under Art. 2176 NCC.2) Trespass to or deprivation of

personal property In the field of tort, trespass

extends to all cases where a person

is deprived of his personal property

even in the absence of criminal

liability.NOTE: It may cover cases where the

defendant was deprived of personal

property for the purpose of obtaining

possession of real property EXAMPLE: The defendant

who was landlord, was held liable

because he deprived the plaintiffs,

his tenants, of water in order to

force them to vacate the lot they

were cultivating. (Magbanua vs. IAC

137 SCRA 352)3) Disconnection of electricity

or gas service The right to

disconnect and deprive the

customer, who unreasonably fails to

pay his bills, of electricity should be

exercised in accordance with the law

and rules. Example: If a

company disconnects the electricity

service without prior notice as required by the rules, the company commits a tort under Article 21 NCC.




John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)239San Beda College of Law f. Abortion and Wrongful Death Damages may be recovered

by both spouses if: 1) the abortion was caused

through the physicians negligence, or 2) was done intentionally

without their consentg. Illegal Dismissal Husband of a

woman who

voluntarily

procured her

abortion may

recover

damages from

the physician

who caused the

same on

account of

distress and

mental anguish

attendant to the

loss of the

unborn child

and the

disappointment

of his parental

expectation.

(Geluz vs. CA

2SCRA802) The right of the employer to

dismiss an employee should

not be confused with the

manner in which the right is

exercised and the effects

flowing therefrom; If the dismissal was done antisocially

and

oppressively, the

employer should be deemed

to have violated Article 1701

of the Civil Code (which

prohibits acts of oppression

by either capital or labor

against the other) and Article

21 NCC.MEMORY AID IN CIVIL LAW An employer may be held

liable for damages if the

manner of dismissing is

contrary to morals good

customs and public policy. EXAMPLE: False imputation

of misdeed to justify dismissal

or any similar manner of

dismissal which is done

abusively.h. Malicious Prosecution An action for damages

brought by one against

another whom a criminal

prosecution, civil suit, or

other legal proceeding has

been instituted maliciously

and without probable cause,

after the termination of such

prosecution, suit or

proceeding in favor of the

defendant therein. The gist of the action is

putting legal process in force

regularly, for mere purpose of

vexation or injury. (Drilon vs.

CA [1997]) Elements:1. The fact of the prosecution and

the further fact that the

defendant was himself the

prosecutor; and that the action

was finally terminated with an

acquittal;2. That in bringing the action, the

prosecutor acted without

probable cause;3. The prosecutor was actuated or

impelled by legal malice.NOTES: Malice is the

inexcusable intent to

injure, oppress, vex,

annoy or humiliate.CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)240San Beda College of Law Presence of probable

cause signifies absence

of malice. Absence of malice

signifies good faith on

the part of the

defendant; good faith

may even be based on

mistake of law. Acquittal presupposes

that a criminal

information is filed in

court and final

judgment rendered

dismissing the case;

nevertheless, prior

acquittal may include

dismissal by the

prosecutor after

preliminary

investigation. (Globe

Mackay and Radio Corp.

vs. CA; Manila Gas Corp

vs. CA)i. Public Humiliation Damages may be awarded in

cases where the plaintiff

suffered humiliation through

the positive acts of the

defendant directed against

the plaintiff. Example: The defendant was

held liable for damages under

Art. 21 for slapping the

plaintiff in public. (Patricio

vs. Hon. Oscar Leviste,

[1989])NOTES: Under

Article

21,

damages

are

recover

able

even

though

no MEMORY AID IN CIVIL LAWTORTS AGAINST HUMAN DIGNITY

TYPES:CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)positive

law was

violated

. An

action

can only

prosper

when

damage,

material

or

otherwis

e, was

suffered

by the

plaintiff

. An

action

based

on

Articles

19-21

will be

dismisse

d if the

plaintiff

merely

seeks

recogn

ition. Under

Articles

19 and

21, the

defenda

nt may

likewise

be

guilty of

a tort

even if

he acted

in good

faith.

(Grand

Union

Superm

arket

vs.

Espino)241San Beda College of Law 1. Violation of the right of privacy Reasonableness of a persons

expectation of privacy depends

on a two-part test:a) Whether by his conduct, the

individual has exhibited an

expectation of privacy.

b) Whether this expectation is one

that the society recognizes as

reasonable.NOTES:GENERAL RULE: Right to privacy can

be invoked only by natural persons;

Juridical persons cannot invoke such

right because the entire basis of right to

privacy is an injury to the feelings and

sensibilities of a party, a corporation

would have no such ground.EXCEPTION: Right against unreasonable

searches and seizure can be invoked by a

juridical entity.GENERAL RULE: Right to privacy is

purely personal in nature, hence:1) It can be invoked only by

the person whose privacy

is claimed to have been

violated.2) It can be subject to

waiver of the person

whose privacy is sought

to be intruded into.3) The right ceases upon

the death of the person.EXCEPTION: A privilege may be given

to the surviving relatives of a deceased

person to protect his memory but the

privilege exist for the benefit of the

living, to protect their feelings and to

prevent the violation of their own rights

in the character and memory of the

deceased. Standard to be

applied in

determining if

there was a

violation of the

right is that of a

person with

ordinary

sensibilities. It

is relative to the

customs of time MEMORY AID IN CIVIL LAWand place and is

determined by

the norm of an

ordinary person.Four Types of Invasion of Privacy

a. Intrusion upon plaintiffs seclusion or solitude

or into his private affairs It is not limited to cases where

the defendant physically trespassed into

anothers property. It includes cases

when the defendant invades ones

privacy by looking from outside

(Example: peeping-tom).GENERAL RULE: There is no invasion of

right to privacy when a journalist records

photographs or writes about something

that occurs in public places.EXCEPTION: When the acts of the

journalist should be to such extent that

it constitutes harassment or overzealous

shadowing.The freedom of the press has never

been construed to accord newsmen

immunity from tort or crimes committed

during the course of the newsgathering. There is no intrusion when an

employer investigates an employee or

when the school investigates its student. RA 4200 makes it illegal for any

person not authorized by all the parties

to any private communication to secretly

record such communication by means of

a tape recorder (Ramirez vs CA, Sept.

28, 1995) Use of a telephone extension for

purposes of overhearing a private

conversation without authorization does

not violate RA 4200.

NOTE: There are instances where the

school might be called upon to exercise

its power over its student for acts

committed outside the school premises

and beyond school hours in the

following:1. In cases of violation of school

policies or regulations occurring in

connection with school sponsored

activity off-campus; or

2. In cases where the misconduct of

the student involves his status as a

student or affects the good name

and reputation of the school.CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon



John Stephen


Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)242San Beda College of Law b. Publicat

ion of Embarrassing Private Facts Requisites:

1. Publicity is given to any private

or purely personal information about

a person;2. Without the latters consent; and

3. Regardless of whether or not such publicity constitutes a criminal

offense, like libel or defamation, the

circumstance that the publication

was made with intent of gain or for

commercial and business purposes

invariably serves to aggravate the

violation of the right. PUBLIC FIGURE - A

person, who by his accomplishments,

fame or mode of living or by adopting a

profession or calling which gives the

public a legitimate interest in his doings,

his affairs and his character.NOTE: Public figures, most especially

those holding responsible positions in

government enjoy a more limited right

to privacy compared to ordinary

individuals. The interest sought to be

protected is the right to be free from

unwarranted publicity, from the

wrongful publicizing of the private

affairs and activities of an individual

which are outside the realm of

legitimate public concern. The publication of facts

derived from the records of official

proceedings which are not otherwise

declared by law as confidential,

cannot be considered a tortious conduct. c. Publicit

y which places a person in a false

light in the public eye The interest to be protected in

this tort is the interest of the

individual in not being made to

appear before the public in an

objectionable false light or false

position.

EXAMPLE: Defendant was held liable

for damages when he published an MEMORY AID IN CIVIL LAWunauthorized biography of a famous

baseball player exaggerating his

feats on the baseball field,

portraying him as a war hero. (Spahn

vs. Messner) If the publicity given to the

plaintiff is defamatory, hence an

action for libel is also warranted; the

action for invasion of privacy will

afford an alternative remedy. May be committed by the media

by distorting a news report.Tort of Putting

Another in False LightDefamation1. As to gravamen of claim

The gravamen of claim is not the

reputational harm

but rather the

embarrassment of a

person being made

into some-thing he is

notThe gravamen of

claim is the reputational

harm2. As to publication

The statement should be actually made in

publicPublication is

satisfied if a letter is

sent to a third person3. As to the defamatory character of the

statementsDefendant may still

be held liable even if

the statements tells

something

Documents

Torts &Damages