TYPES Torts-and-Damages.pdf

7/29/2019 TYPES Torts-and-Damages.pdf

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TORTS AND DAMAGES Notes of FERDINAND E. LIMOS

TORTS AND DAMAGES

Philippine Tort Law ARTs. 2176-2194; ARTs. 19, 20, 21

TORT - (French) to twist; derivative of torquere (Latin); a legal wrong committed upon person or propertyindependent of contract, for which the court will provide a remedy in the form of an action for damages.

Kinds:1. Intentional tort conduct where the actor desires to cause the consequences of his act.

e.g., assault, battery, defamation, invasion of privacy, interference of property

2. Negligence voluntary acts or omissions which result to injury to others, without intending to cause thesame; the actor fails to exercise due care in performing such act or omission.

3. Strict Liability where the person is made liable independent of fault or negligence upon submission of proofof certain facts.e.g., ART 2183 (animals); ART 2193 (falling objects)

Elements/Requisites of Quasi-delict

1. an act or omission constituting fault or negligence;2. damage caused by said act or omission;3. causal relation between the damage and the act or omission;4. absence of contractual relation between the plaintiff and defendant.

NOTE: An act or omission may give rise to an action based on 1. delict culpa criminal2. quasi-delict culpa aquiliana3. contract culpa contractual

NEGLIGENCE the omission of that degree of diligence which is required by the nature of the obligation andcorresponding to the circumstances of persons, time and place. (1173);

-- conduct which creates undue risk of harm to others.

Test of Negligence

Did the defendant in doing the alleged negligent act use that reasonable care and caution which anordinary prudent man would have used in the same situation? If not, then he is guilty of negligence.(Picart v. Smith, 1918)

Note:1. What the defendant did or did not do.2. The state of mind of the actor is not important.3. Good faith or use of sound judgment is immaterial.4. The conduct to be examined is prior conduct prior to the injury that resulted to or aggravated the

situation.

Gross Negligence want of even slight care and diligence; similar to Reckless Imprudence under ART 365, RPC

Unreasonable Risk a danger which is apparent, or should be apparent, to one in the position of the actor;it should be foreseeable and probable (possible).

Proof of Negligence

GR: It is up for the plaintiff to establish his cause of action or the defendant to establish his defense. Thequantum of proof required is preponderance of evidence.

EX: Instances when negligence ispresumed:

A. Prima facie 1. Art. 2180 --- the negligence of the employer in the selection or supervision of his employee (NOTE:

Contrast this with the Anglo-American doctrine ofrespondeat superior which does not apply in thePhilippines where the negligence of the employee is conclusively presumed to be the negligenceof employer);

2. Art. 2184, par 1--- in motor vehicle mishaps, the driver is prima facie negligent if he had been foundguilty of reckless driving or violating traffic regulations at least two times within the next precedingtwo months;

3. Art. 2185 --- the driver is prima facie negligent if at the time of the mishap, he was violating anytraffic regulation;

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4. Art. 2188 ---- the defendant is prima facie negligent if the death or injury results from his possessionof dangerous weapons or substances such as firearms and poison, EXCEPT when possession thereofis indispensable to his occupation or business.

5. Arts. 1733 & 1756 --- in case of loss, destruction or deterioration of the goods, or in case of death orinjuries to passengers, the common carriers are presumed to be negligent, UNLESS they can provethat they exercised extraordinary diligence or utmost diligence as the case may be.

B. Conclusively presumed

1. Art. 2183 --- the possessor of an animal or whoever may use the same is responsible for thedamage which it may cause, although it may escape or lost, EXCEPT if the damage should come fromforce majeure or from the fault of the injured party. (See Afialda v. Hisole, 85 Phil 67)

2. Art. 2193 --- the head of a family that lives in a building or part thereof, is responsible for damagescaused by things thrown or falling from the same.

RES IPSA LOQUITUR -- the thing speaks for itself

Where the thing which causes injury is shown to be under the management of the defendant, and theaccident is such as in the ordinary course of things does not happen if those who have the management

use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, thatthe accident arose from want of care.

Requisites

1. the accident is of a kind which ordinarily does not occur in the absence of someonesnegligence;2. it is caused by an instrumentality within the exclusive control of the defendant;3. the possibility of contributing conduct which would make the plaintiff responsible is eliminated.

Function

To aid the plaintiff in proving the elements of negligence by circumstantial evidence (coz here,negligence is hard to establish by direct evidence)

When applicable

This can be invoked only when, under the circumstances, direct evidence is absent or not readilyavailable.See: Africa v Caltex, 1966 gasoline station fire

F.F. Cruz v CA, 1988 furniture shop fireRepublic v Lusteveco, 1967 barge bumps Nagtahan bridge

When NOT applicable

If there is direct proof of absence or presence of negligence.See: Layugan v IAC, 167 SCRA 376 (1988) repair of cargo truck with EWD

LAST CLEAR CHANCE

The person who has the last fair chance to avoid the impending harm and fails to do so is chargeablewith the consequences, without reference to the prior negligence of the other party.

Even if the plaintiff was guilty of antecedent negligence, the defendant is still liable because he had thelast clear chance of avoiding injury.

AKA: Doctrine of Discovered Peril; Doctrine of Supervening Negligence; Doctrine of Gross NegligenceHumanitarian doctrine.

Elements

1. plaintiff was in a position of danger and, by his own negligence, becomes unable to escape

from such position;2. defendant knew that plaintiff was in a position of danger and further knew that the plaintiff wasunable to escape therefrom; and3. thereafter, defendant had the last clear chance to avoid the accident by the exercise of ordinarycare but failed to exercise such last clear chance, and4. the accident occurred as a proximate result of such failure.

Function

To determine the proximate cause of the accident.

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When applicable

1. a suit between the owners and drivers of colliding vehicles.See: Picart v Smith, 1918

Philippine bank of Commerce v CAGlan Peoples Lumber v IAC, 1989

When NOT applicable

1. where a passenger demands responsibility from the carrier to enforce its contractual obligations.(Bustamante v CA, 1991)

2. as between defendants, the doctrine cannot be extended to joint tortfeasors as a test of whetheronly one of them should be held liable to the injured person. (Bustamante v CA, 1991)

3. where the defendant is required to act instantaneously (i.e., contemporaneously) (Pantranco vBaesa, 1989)

4. if the plaintiff was not negligent, that is, only the defendant is negligent. (Pantranco v Baesa, 1989)

5. where the actor, though negligent, was not aware of the danger or risk brought about by a prior

fraud or negligent act. (BPI v CA; LBC v CA, 1995)

DOCTRINE OF PROXIMATE CAUSE

A device for imputing liability to a person where there is no relation between him and another party. Insuch a case, the obligation is created by law.

PROXIMATECAUSE that cause which, in natural and continues sequence, unbroken by any efficient interveningcause, produces the injury, and without which the result would not have occurred.

When applicable --

Only in action for quasi-delict; NOT in action involving breach of contract. (Calalas v CA, 2000)

Tests of Proximate Cause

1. But-for or sine qua non test --- the defendants conduct (cause) should be that without which thedamage would not have resulted.

2. Forseeability test --- where the particular harm was reasonably foreseeable at the time of thedefendants misconduct, his act or omission is the legal cause thereof.

3. Cause and condition test --- if the defendant has created only a passive, static condition which madethe damage possible, he is said to be liable.

4. Substantial factor test --- makes the negligent conduct the cause of the damage if it was asubstantial factor in producing the injury.

5. Natural and probable consequences test the defendant is liable only if the harm suffered is thenatural and probable consequences of his act.

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Defenses in Negligence cases

1. Contributory Negligence --- (Rule of Comparative Negligence)Conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, whichfalls below the standard to which he is required to conform for his protection.

In quasi-delict, the contributory negligence of the plaintiff shall reduce the damage that may be

recovered. (ART. 2214)

If the shipper or owner merely contributed to the loss, destruction or deterioration of the goods, theproximate cause being the negligence of the common carrier, the latter shall be liable in damages, whichhowever, shall be equitable reduced. (ART. 1741)

Rule under ART. 2179

1. If the plaintiffs contributory negligence was the proximate cause - he cannotrecover damages.2. If the proximate cause was still the negligence of the defendant - the plaintiffcan recover damages

but his contributory negligence will be considered in mitigating the amount of damages.

2. Assumption of Risk --- (Volenti Non Fit Injuria)Elements --1. the plaintiff must know that the risk is present;

2. he must understand the nature of the risk;3. his choice to incur the risk is free and voluntary

Kinds

1. EXPRESS WAIVER OF RIGHT TO RECOVER - if the plaintiff, in advance, has expressly waived his right torecover damages for the negligent act of the defendant. (However, one cannot contract away hisright to recover damages resulting from negligence. Pleasantville v CA, 1906)

2. IMPLIEDWAIVEROFRIGHTTORECOVER ---a. DANGEROUS CONDITIONS --- a person who, knowing that he is exposed to a dangerous

condition, voluntarily assumes the risk of such condition may not recover from thedefendant who maintained such danger. (See Afialda v Hisole, 1949)

b. CONTRACTUALRELATIONS --- assumption of risk is a defense of an employer in a tort case filed

by an employee. (See Afialda v Hisole, 1949)

c. DANGEROUSACTIVITIES --- person who voluntarily participate in dangerous activities assume therisk which are usually present in such activities, e.g., basketball, baseball

3. Prescription An action based on quasi-delict prescribes in 4 years (1146).

The period of prescription begins to run from the date the quasi-delict occurred or was committed.

The period is not interrupted by the filing of criminal action because the civil liability based on quasi-delictis an ICA.

4. Damnum Absque Injuria --- (Damage without injury)If there is no legal wrong or violation of a right, the act of a person may not result in an action fordamages.

5. Caso Fortuito --- (Fortuitous event)An event which could not be foreseen, or which though foreseen, was inevitable.

Under ART. 1174, a person is generally not liable if the cause of damage is fortuitous.

Elements:1. The cause of the breach of the obligation must be independent from the will of the debtor;2. The event must be either unforeseen or unavoidable;3. The event must be such as to render it impossible for the debtor to fulfill his obligation in a normal

manner;4. The debtor must be free from any participation in or aggravation of the injury of the creditor.

6. Due Diligence in he Selection and Supervision of Employees (ART. 2180, par 5)

7. Diligence of a Good Father of a Family (Bonus Paterfamilias) (ART. 2180, last par.)

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VICARIOUS LIABILITY --- (Doctrine of Imputed Negligence)

A person is not only liable for torts committed by himself, but also for the torts committed by others withwhom he has a certain relationship and for whom he is responsible.

A. Parents, Substitute Parents (adopters) & Special Parents (court appointed guardians)

1. basis of liability --- parental authority (see Art. 58, CYWC; Arts. 221 & 236, FC)

2. elements -a. minor child must be living in parents companyb. both parents now are primarily liable under the FCc. parents or guardians can still be held liable even if the minor is already emancipated

provided that he is below 21 (proviso in RA 6809 amending Art. 236 of FC)

3. defense --- by proving bonus paterfamilias (Art. 2180)

SEE: Cuadra v Monfort, 1970Tamargo v CA, 1992Libi v IAC, 1992

B. Guardians of Incapacitated Adults ---Limited to acts of incapacitated adults who are:

1. under their authority; and2. live in their company. (Art. 2180)

C. Schools, Teachers and Administrators ---

1) Rules under Art. 2180 (Amadora v CA, 1988)

1. teachers are liable for the acts of their pupils and students, and head of schools of arts andtrade for the acts of their apprentices, whether minors or not.

2. GR: Teacher-in-charge is liable for the acts of his students (the school and administrators

are not liable)

EX: Only the head of school (not the teacher) is liable where the injury is caused in aschool of arts and trade.

3. The liability of the teacher subsists whether the school is academic or non-academic.

4. Liability is imposed only if the pupil is already in the custody of the teacher or the head. Thestudent is in the custody of school authorities as long as he is under the control andinfluence of the school and within its premises, whether the semester has not yet began orhas already ended.

SEE: Exconde v Capuno, 1957 Balintawak Elem. Sch.; Dante CapunoMercado v CA, 1960 Lourdes Catholic School, QCPalisoc v Brilliantes, 1971 Manila Technical Institute

Amadora v CA, 1988 Colegio de San Jose-Recoletos (but see Pasio v CFI, 1987)PSBA v CA, 1992 PSBA; Carlitos Bautista

2) Other basis of liability ART. 103, RPC, provides that the subsidiary liability of the employer under ART. 102shall also apply to teachers for felonies committed by their pupils.

3) Defense (of school) Due diligence in the selection and supervision of their employees (including teachers).

D. Employers (See Rafael Reyes Trucking Corp v People, 2000)

1. Under 2180 of the NCC, liability attaches where there is:

a. employer-employee relationship exists; andb. injury caused while performing assigned task.The liability of the employer for the negligent conduct of the employee is direct and primary,subject to the defense of due diligence in the selection and supervision of the employee;enforcement of the judgment against the employer does not require the employee to beinsolvent since the nature of the liability of the employer with that of the employee is solidary.

2. Under 103 of the RPC, an employer may be held subsidiarily civilly liable for a felony committedby his employee in the discharge of his duty. This liability attaches when the employee isconvicted of a crime done in the performance of his work and is found to be insolvent thatrenders him unable to properly respond to the civil liability adjudged.

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3. Defense - Due diligence in the selection and supervision of the negligent employee.(But NOTE that an implementing rule on labor cannot be used by an employer asa shield to avoid liability under the substantive provision of the Civil Code. Filamer Christian Institute v IAC)

E. State

Limited to acts of special agents; Art. 2180, par 5 is an example of a law allowing the State tobe sued.

SPECIAL AGENT is one who receives definite and fixed order or commission, foreign to theexercise of the duties of his office if he is a special official. (Merrit v Govt of PI, 34 Phil 300).

This is a government employee who commits a tort while performing a job foreign to his usualduties. (Republic v Palacio, 1968)

The State is liable only for torts caused by its special agents specially commissioned to carryout the acts of which the tort arise, and which acts are outside of the regular duties of saidspecial agents.

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