Laws and Jurisprudence On Torts and Damages Largopdf

1
TORTS
(QUASI-DELICT)
CHAPTER 1
INTRODUCTORY CONCEPTS
1. TOR
ORTS
TS in cocom
mmon la law
w cov
cover
er al
alll wr
wron
ongf
gful
ul Definition
acts, although sometimes viewed to be limited only to a
wrong independent of a contract. In common law coun-
tries like the United States, torts may either be inten-
tional or unintentional. They may also fall under the
category of strict liability torts. Intentional torts include:
battery,, assault (apprehension of harmful or offensive
battery
contact), false imprisonment, intentional infliction of
emotional distress (IIED), invasion of privacy, fraud,
defamation of character (includes libel, which is written
defamation of character and slander
sla nder,, which is non-writ-
ten defamation of character), malicious prosecution,
abuse of process, the real property tort of trespass to
land, and the personal property torts of conversion and
trespass to chattels. On the other hand, unintentional
torts are usually founded on negligent acts and may
include malpractice (professional negligence), and prod-
uct liability.
2. Thee wor
Th wordd “to
“tort
rt”” cam
camee to
to be
be ado
adop
pte
ted
d in
in our
our
jurisprudence upon the implantation of American sov-
ereignty in the Philippines. But there are important dif-
ferences between the common law on torts obtaining in
the United States and the law on torts in the Philippines.
This is due to the fact that the provisions of our codes
governing legal wrongs which we call “torts” are some-
2 LAWS AND JURISPRUDENCE ON TORTS AND DAMAGES
3. Thee Ph
Th Phil
ilip
ippi
pine
ness is
is a ci
civi
vill law
law co
coun
untr
try
y. Our
Our
private laws are found in codes mainly based on the
Spanish codes which were continued in force with cer-
tain modifications after the advent of the American re-
gime and in laws passed by our legislature from time to
time. These latter laws were based on, or greatly influ-
enced by, American ideas and principles which are the
product of the common law. In the interpretation and
application of our codes and legislation, our courts have
freely drawn upon American precedents and authori-
ties. The result of all this is that many common law prin-
ciples have been engrafted in our legal system. Perhaps,
in no branch of law in the Philippines is the blending of
the common law and the civil law systems better exem-
plified that in the field of torts (Ibid., citing Jarencio, Phil-
ippine Legal History).
4. In th
thee Ph
Phil
ilip
ippi
pine
nes,
s, ou
ourr con
conce
cept
pt of to
tort
rtss lea
leans
ns
towards its civil law equivalent of culpa aquiliana. Thus,
in Article 2176 of our Civil Code, the following defini-
tion appears: “Whoever by act or omission causes dam-
age to another,
another, there being fault or negligence, is obliged
obli ged
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.”
Distinguished 5. In th
thee gen
gener
eral
al pl
plan
an of th
thee Phi
Phili
lipp
ppin
inee leg
legal
al sy
sys-
s-
from torts tem, intentional and malicious acts that are constitutive
also of torts in common law are governed by the Penal
Code, although certain exceptions are made (See Report
of the Code Commission, pp. 161-162). What are generally
considered tortious acts in the Philippines are limited to
acts committed by negligence and without intent. “Quasi-
delict under Art. 2176 is limited to negligent acts or omis-
sions and excludes the notion of willfulness or intent. In
the general scheme of the Philippine legal system envi-
sioned by the Commission responsible for drafting the
New Civil Code, intentional and malicious acts, with
certain exceptions, are to be governed by the Revised
CHAPTER 1 3
6. Quasi-delict, known in Spanish legal treatises

as culpa aquiliana , is a civil law concept while “torts’’ is
an Anglo-American or common law concept. Tort is
much broader than culpa aquiliana because it includes
not only negligence, but intentional criminal acts as well
such as assault and battery, false imprisonment and de-
ceit (Gashem Shookat Baksh vs. Court of Appeals, et al., G.R.
No. 97336, February 19, 1993).
7. “Quasi-delict, as defined in Article 2176 of the
Civil Code, (which is known in Spanish legal treatises as
culpa aquiliana , culpa extra-contractual or cuasi-delitos) is
homologous but not identical to tort under the common
law, which includes not only negligence, but also inten-
tional criminal acts, such as assault and battery, false
imprisonment, and deceit.” (Coca-Cola Bottlers Phils., Inc.
vs. Court of Appeals, et al., G.R. No. 110295, October 18,
1993).
8. Howe
Ho weve
verr, in
in cas
cases
es of sp
spec
ecia
iall tor
torts
ts (s
(see
ee di
disc
scus
us--
sion in Chapter 7, infra.) , , willful acts may be made basis
of an action for damages. “In the general scheme of the
Philippine legal system envisioned by the Commission
responsible for drafting the New Civil Code, intentional
and malicious acts, with certain exceptions, are to be
governed by the Revised Penal Code while negligent
acts or omissions are to be covered by Article 2176 of the
Civil Code. In between these opposite spectrums are in-
jurious acts which, in the absence of Article 21, would
have been beyond redress. Thus, Article 21 fills that
vacuum. It is even postulated that together with Articles
19 and 20 of the Civil
Civi l Code, Article 21 has greatly broad-
ened the scope of the law on civil wrongs; it has become
much more supple and adaptable than the Anglo-Ameri-
can law on torts.” (Tolentino, Commentaries and Jurispru-
dence on the Civil Code of the Philippines, vol. 1, 1985 ed.,
72).
9. The elements of a quasi-delict are (a) damages Elements of
suffered by the plaintiff; (b) fault or negligence of the Quasi-delict
tric Company, 16 Phil. 8; Vergara vs. Court of Appeals, G.R.

No. 77679, September 30, 1987, 154 SCRA 564).
10. While quasi-delict is limited to negligent acts
or omissions and excludes intentional ones, said negli-
gent acts may cover those which are punishable by law la w.
Article 2176, where it refers to “fault or negligence,” cov-
ers not only acts “not punishable by law” but also acts
criminal in character. In other words, culpa aquiliana
includes voluntary and negligent acts which may be pun-
ishable by law.
11. In cocons
nseq
eque
uenc
nce,
e, a negl
neglige
igentnt ac
actt that
that has
has be
been
en
made subject of a criminal case may at the same time be
an object of an action for quasi-delict.
12. Ar
12. Artic
ticle
le 217
2176,
6, whe
where
re it ref
refer
erss to “f
“fau
ault
lt or
or negli
negli--
gence,” covers not only acts “not punishable by law”
but also acts criminal in character
character,, whether intentional
and voluntary or negligent. Consequently,
Consequently, a separate civil
action lies against the offender in a criminal act, whether
or not he is criminally prosecuted and found guilty or
acquitted, provided that the offended party is not al-
lowed, if he is actually charged also criminally, to re-
cover damages on both scores, and would be entitled in
such eventuality only to the bigger award of the two,
assuming the awards made in the two cases vary. In
other words, the extinction of civil liability referred to in
par. (e) of Section 3, Rule 111, refers exclusively to civil
liability founded on Article 100 of the Revised Penal
Code, whereas the civil liability for the same act consid-
ered as a quasi-delict only and not as a crime is not extin-
guished even by a declaration in the criminal case that
the criminal act charged has not happened or has not
been committed by the accused (Elcano vs. Hill, G.R. No.
L-24803, May 26, 1977).
13. “R
13. “Res
espo
pons
nsib
ibili
ility
ty for
for fau
fault
lt or
or negli
neglige
genc
ncee unde
underr
[quasi-delict] is entirely separate and distinct from the
civil liability arising from negligence under the Penal
Code. But the plaintiff cannot recover damages twice
for the same act or omission of the defendant.” (Art.
CHAPTER 1 5
and individuality that is entirely apart and independent

from a delict or crime (Castillo, et al. vs. Court of Appeals,
et al., G.R. No. 48541, August 21, 1989, 176 SCRA 591).
15. According to the Code Commission: “The
foregoing provision (Article 2177) though at first sight
startling, is not so novel or extraordinary when we con-
sider the exact nature of criminal and civil negligence.
The former is a violation of the criminal law, while the
latter is a ‘culpa aquiliana’ or quasi-delict, of ancient ori-
gin, having always had its own foundation and indi-
viduality, separate from criminal negligence. Such dis-
tinction between criminal negligence and ‘culpa extra-
contractual’ or ‘cuasi-delito’ has been sustained by deci-
sion of the Supreme Court of Spain and maintained as
clear, sound and perfectly tenable by Maura, an out-
standing Spanish jurist. Therefore, under the proposed
Article 2177, acquittal from an accusation of criminal
negligence, whether on reasonable doubt or not, shall
not be a bar to a subsequent civil action, not for civil
liability arising from criminal negligence, but for dam-
ages due to a quasi-delict or ‘culpa aquiliana.’ But said
article forestalls a double recovery.” (Report of the Code
Commission, p. 162, cited in Elcano vs. Hill, supra).
16. The settled rule is that the same act or omis-
sion can create two kinds of liability on the part of the
offender, that is, civil liability ex delicto and civil liability
ex quasi delicto. Since the same negligence can give rise
either to a delict or crime or to a quasi-delict or tort,
either of these two types of civil liability may be en-
forced against the culprit, subject to the caveat under
Article 2177 of the Civil Code that the offended party
cannot recover damages under both types of liability
(Jarantilla vs. Court of Appeals, G.R. No. 80194, March 21,
1989).
17. Some of the differences between crimes un- Culpa
der the Penal Code and the culpa aquiliana or cuasi-delito aquiliana
under the Civil Code are: (a) that crimes affect the pub- distinguished
lic interest, while from culpa
(c) that delicts are not as broad as quasi-delicts, because

the former are punished only if there is a penal law
clearly covering them, while the latter, cuasi-delitos , in-
clude all acts in which “any kind of fault or negligence
intervenes.” (See Barredo vs. Garcia, G.R. No. 48006, July
8, 1942, citing Colin and Capitant, “Curso Elemental de
Derecho Civil,” Vol. 3, p. 728.).
18. May the civil action for culpa aquiliana and
the criminal action for the same negligent act be filed
simultaneously? The Supreme Court, in Rafael Reyes
Trucking Corporation vs. People of the Philippines, et al., G.R.
No. 129029, April 3, 2000 , first answered the question in
the negative.
19. In Rafael Reyes Trucking Corporation case , the
Provincial Prosecutor of Isabela filed with the Regional
Trial Court an amended information charging Romeo
Dunca y de Tumol with reckless imprudence resulting
in double homicide and damage to property. Upon ar-
raignment, the offended parties made a reservation to
file a separate civil action against the accused arising
from the offense charged. Thereafter, the offended par-
ties actually filed with the Regional Trial Court a com-
plaint against the employer of the driver based on quasi
delict. Among the issues raised was whether the Court
may award damages to the offended parties in the crimi-
nal case despite the filing of a civil action against the
employer of the truck driver. The Supreme Court ruled
that “[i]n negligence cases, the aggrieved party has the
choice between (1) an action to enforce civil liability aris-
ing from crime under Article 1001 of the Revised Penal
Code; and (2) a separate action for quasi delict under
Article 2176 of the Civil Code of the Philippines. Once
the choice is made, the injured party can not avail him-
self of any other remedy because he may not recover
damages twice for the same negligent act or omission of
the accused.
CHAPTER 1 7
20. In other words, “the same act or omission

can create two kinds of liability on the part of the of-
fender, that is, civil liability ex delicto , and civil liability
quasi delicto” either of which “may be enforced against
the culprit, subject to the caveat under Article 2177 of
the Civil Code that the offended party can not recover
damages under both types of liability.” (Ibid.)
21. But the decision drew several dissents. Chief
Justice Davide said “[t]he aggrieved parties in criminal
cases may pursue their claims for damages either as
delictual damages, or quasi-delictual damages under Ar-
ticle 2176 of the Civil Code, which the Code considers as
“entirely distinct and separate from the civil liability aris-
ing from negligence under the Revised Penal Code.”
22. Justice Vitug, in his dissent, also said “[a]n
early established rule under our law is that an act or
omission, extra-contractual in nature, causing damage
to another, there being fault or negligence can create
two separate civil liabilities on the part of the offender,
i.e., civil liability ex delicto and civil liability ex quasi delicto.
Either one of these two possible liabilities may be sought
to be enforced against the offender subject, however, to
the caveat under Article 2177 of the Civil Code that the
offended party cannot “recover damages twice for the
same act or omission” or under both causes. Outside of
this proscription, the two civil liabilities are distinct and
independent of each other; thus, and conversely against
the rule on double recovery, the failure of recovery in
one will not necessarily preclude recovery in the other.
23. In the later case of Casupanan, et al. vs. Laroya,
G.R. No. 145391, August 26, 2002 , concerning a vehicular
accident involving two parties, each believing that the
accident was caused by the fault of the other, the issue
raised was whether an accused in a pending criminal
case for reckless imprudence can validly file, simulta-
neously and independently, a separate civil action for
quasi-delict against the private complainant in the crimi-
not apply to independent civil actions based on Articles

32, 33, 34 and 2176 of the Civil Code, which could pro-
ceed independently regardless of the filing of the crimi-
nal action (Id., Casupanan, et al. vs. Laroya).
28. “In the cases provided in Articles 32, 33, 34
and 2176 of the Civil Code of the Philippines, the inde-
pendent civil action may be brought by the offended
party. It shall proceed independently of the criminal ac-
tion and shall require only a preponderance of evidence.
In no case, however, may the offended party recover
damages twice for the same act or omission charged in
the criminal action.” (Section 3, Rule 111 of the 2000 Rules
of Criminal Procedure).
29. Inasmuch as an independent civil action may
be filed before or during the pendency of the criminal
case involving the same negligent act, a prefatory dis-
cussion is needed on the liability of employer in a crimi-
nal case against the negligent employee and the
employer’s vicarious liability for the same negligent act
of the employee in the separate and independent civil
action for quasi-delict.
30. Thus, for instance, a reckless driver may be
held civilly liable in the criminal case where he was con-
victed of reckless imprudence. The civil liability in this
case is liability ex delicto. Should the employee be found
to be insolvent, the civil aspect may be enforced against
his employer under Art. 103 of the Revised Penal Code.
31. In the meantime, the employer may also be
facing a civil action for quasi-delict proceeding from his
vicarious liability as employer of the reckless driver un-
der Article 2180, par. 5 of the Civil Code.
32. In the above instances, the plaintiff “cannot
recover damages twice for the same act or omission of
the defendant.” (Art. 2177, Civil Code). He will then have
to choose which favorable judgment to enforce.
33. Distinction should be made between the sub-
CHAPTER 1 13
The first type of liability is governed by Articles

102 and 1036 of the Revised Penal Code while the sec-
ond kind is governed by the provisions of the Civil Code.
34. Under Article 103 of the Revised Penal Code,
liability originates from a delict committed by the em-
ployee who is primarily liable therefor and upon whose
primary liability his employer’s subsidiary liability is to
be based. Before the employer’s subsidiary liability may
be proceeded against, it is imperative that there should
be a criminal action whereby the employee’s criminal
negligence or delict and corresponding liability therefor
are proved. If no criminal action was instituted, the
employer’s liability would not be predicated under Ar-
ticle 103. The conviction of the employee primarily li-
able is a condition sine qua non for the employer’s sub-
sidiary liability. There can be no automatic subsidiary
liability of defendant employer under Article 103 of the
Revised Penal Code where his employee has not been
previously criminally convicted (Franco vs. Intermediate
Appellate Court, G.R. No. 71137, October 5, 1989).
Under Articles 2176 and 2180 of the Civil Code,
liability is based on culpa aquiliana which holds the em-
6
ARTICLE 102. Subsidiary civil liability of innkeepers, tavern-
keepers and proprietors of establishments. — In default of the persons
criminally liable, innkeepers, tavernkeepers, and any other persons or
corporations shall be civilly liable for crimes committed in their estab-
lishments, in all cases where a violation of municipal ordinances or
some general or special police regulation shall have been committed
by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods
taken by robbery or theft within their houses from guests lodging
therein, or for the payment of the value thereof, provided that such
guests shall have notified in advance the innkeeper himself, or the
person representing him, of the deposit of such goods within the inn;
and shall furthermore have followed the directions which such inn-
keeper or his representative may have given them with respect to the
care of and vigilance over such goods. No liability shall attach in case
of robbery with violence against or intimidation of persons unless
committed by the innkeeper’s employees.
ployer primarily liable for tortious acts of its employees

subject, however, to the defense that the former exer-
cised all the diligence of a good father of a family in the
selection and supervision of his employees (Ibid.).
35. “An employer’s liability based on a quasi-delict
is primary and direct, while the employer’s liability based
on a delict is merely subsidiary.
The words “primary and direct,” as contrasted with
“subsidiary,” refer to the remedy provided by law for
enforcing the obligation rather than to the character and
limits of the obligation. Although liability under Article
2180 originates from the negligent act of the employee,
the aggrieved party may sue the employer directly. When
an employee causes damage, the law presumes that the
employer has himself committed an act of negligence in
not preventing or avoiding the damage. This is the fault
that the law condemns. While the employer is civilly
liable in a subsidiary capacity for the employee’s crimi-
nal negligence, the employer is also civilly liable directly
and separately for his own civil negligence in failing to
exercise due diligence in selecting and supervising his
employee. The idea that the employer’s liability is solely
subsidiary is wrong” (Cerezo vs. Tuazon, G.R. No. 141538,
March 23, 2004).
36. In consequence, the civil action for quasi-delict
against the employer may proceed even without the err-
ing employee being impleaded. “The action can be
brought directly against the person responsible (for an-
other), without including the author of the act. The ac-
tion against the principal is accessory in the sense that it
implies the existence of a prejudicial act committed by
the employee, but it is not subsidiary in the sense that it
can not be instituted till after the judgment against the
author of the act or at least, that it is subsidiary to the
principal action; the action for responsibility (of the em-
ployer) is in itself a principal action.” (Ibid.).
Pre-existing
Even in the earlier case of Vda de Severo et al. vs. Go,

et al., G.R. No. L-44330, January 29, 1988, it was men-
tioned that once the choice of forum and remedy has
been made, the claimants are bound thereby and may
no longer pursue the alternative course, in consonance
with the established principles that enjoin multiplicity
of suits and splitting a cause of action.
53. Bu
53. Butt a cau
cause
se of
of act
action
ion is und
under
ersto
stood
od to be th
thee
act or omission by which a party violates a right of an-
other (Section 2, Rule 3, Revised Rules of Civil Procedure).
And “there is no precise rule for determining what makes
an entire cause of action. It depends upon the facts and
circumstances of the particular case and the decisions of
the different courts are not always in harmony in their
application of the rule to particular cases. In the deter-
mination of this question, various tests have been sug-
gested and applied, such as whether the same evidence
is necessary to support all branches of the claim or
whether the claim rests upon one or several acts or agree-
ments, but in the latter case it must be remembered that
separate causes of action, for which separate actions may
be maintained, may arise not only out of separate and
distinct acts, contracts or transactions, but also in some
cases, out of the same act, contract, or transaction” (The
Revised Rules of Court in the Philippines, Vol. 1, page 104,
by Vicente
Vicente J. Francisco).
In the case of passengers injured by reason of the
negligence of the bus driver, the negligent act of the
driver may bring about an action for culpa contractual
against the operator of the bus and culpa aquiliana for
the negligent act of selecting and supervising the em-
ployee-driver. It needs to be borne in mind that culpa
aquiliana and culpa contractual are separate legal institu-
tions, and are subject to different requirements and de-
fenses. While culpa contractual requires extraordinary dili-
gence, culpa aquiliana , on the other hand, only calls for
due diligence in the selection and supervision of em-
ployees. In culpa contractual , , the defense of due diligence
CHAPTER 1 21
caused by negligence or willful acts of their employees.

More importantly, “in an action based on a contract of
carriage, the court need not make an express finding of
fault or negligence on the part of the carrier in order to
hold it responsible for the payment of the damages
sought by the passenger. By the contract of carriage, the
carrier assumed the express obligation to transport the
passengers to their destination safely and to observe ex-
traordinary diligence with a due regard for all the cir-
cumstances, and any injury that might be suffered by its
passengers is right away attributable to the fault or neg-
ligence of the carrier” (Batangas Laguna Tayabas Bus Com-
pany, et al. vs. Intermediate Appellate Court, et al., G.R. No.
74387-90, November 14, 1988, citing Art. 1756, New Civil
Code).
In fact, in the United States, the prevailing rule is
“Where separate actions may be brought for injury to
person and to property resulting from the same wrong-
ful act, a judgment in an action for the injury to the
person or property is not a bar to the maintenance of an
action for the injury to the other, whether the judgment
in the earlier case is in favor of the plaintiff or the defen-
dant. However,
However, the judgment in the firstfirs t action may pre-
clude the relitigation of identical issues in the second
action.” (74 Am Jur 2d, at p. 669).
55. Of cocour
urse
se a pa
part
rtyy may
may op
optt not
not to
to file
file sep
separa
arate
te
suits but instead institute but one case and allege alter-
native causes of action for culpa contractual and culpa
aquiliana. This was expressly allowed by the Supreme
Court in the case of Fabre, Jr. et al. vs. Court of Appeals, et
al., G.R. No. 111127, July 26, 1996 where it was held that it
is permitted for a party “to allege alternative causes of
action and join as many parties as may be liable on such
causes of action so long as plaintiffs do not recover twice
for the same injury.”
56. An
Anen
entt the
the qu
ques
estio
tion
n of
of whe
wheth
ther
er an agg
aggri
riev
eved
ed
party can institute an action for culpa contractual after
vs. Cresencia, et al., G.R. No. L-8194, July 11, 1956 , that
“plaintiffs’ action for damages is independent of the
criminal case and based, not on the employer’s subsid-
iary liability under the Revised Penal Code, but on a
breach of the carrier’s
carrier ’s contractual obligation to carry his
passengers safely to their destination (culpa contractual).
x x x [I]n culpa contractual , , the liability of the carrier is
not merely subsidiary or secondary, but direct and im-
mediate (Articles 1755, 1756, and 1759, New Civil Code).”
23
CHAPTER 2
ELEMENTS OF QUASI-DELICT
1. Going by defini tion of quasi-delict under Negligence

Article 2176 of the Civil Code, it can be said that an defined
action for quasi-delict is founded on the existence of a
negligent act. A discussion, thus, of the concept of negli-
gence is in order.
2. Negl
Ne glig
igen
ence
ce is st
stat
atut
utor
oril
ily
y def
defin
ined
ed to be th
thee
omission of that degree of diligence which is required
by the nature
nature of the obligation and corresponding to the
circumstances of persons, time and place (Art. 1173,
NCC). It is the omission to do something which a rea-
sonable man, guided by those considerations which or-
dinarily regulate the conduct of human affairs, would
do, or the doing of something which a prudent and rea-
sonable man would do (Philippine Bank of Commerce v.
Court of Appeals, G.R. No. 97626, 14 March 1997).
3. It al
also
so ref
efer
erss to
to the
the co
cond
nduc
uctt whi
which
ch cr
crea
eate
tess un-
un-
due risk of harm to another, the failure to observe that
degree of care, precaution and vigilance that the circum-
stance justly demand, whereby that other person suffers
injury (Smith Bell Dodwell Shipping Agency Corporation v.
Borja, G.R. No. 143008, 10 June 2002).
While the law relating to negligence in this juris-
diction may possibly be somewhat different from that in
Anglo-Saxon countries, the rules under which the fact
of negligence is determined are, nevertheless, generally
the same. That is to say, while the law designating the
person responsible for a negligent act may not be the
same here as in many jurisdictions, the law determining
what is a negligent act is the same here, generally speak-
March, 1901; 2 March, 1904; 7 February, 1905; 16 June,

1905; 23 June, 1905; 13 April, 1903; 7 March, 1902; 12
June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901
cited in S.D. Martinez vs. Buskirk, G.R. No. L-5691, De-
cember 27, 1910).
Test to 4. The test by which to determine the existence
determine of negligence in a particular case may be stated as fol-
existence of lows: Did the defendant in doing the alleged negligent
negligence act use that reasonable care and caution which an ordi-
narily prudent person would have used in the same situ-
ation? If not, then he is guilty of negligence.
5. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of
the discreet paterfamilias of the Roman law. The exist-
ence of negligence in a given case is not determined by
reference to the personal judgment of the actor in the
situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordi-
nary intelligence and prudence and determines liability
by that. (Picart vs. Smith, 37 Phil. 809 (1918).
6. The question as to what would constitute the
conduct of a prudent man in a given situation must of
course be always determined in the light of human ex-
perience and in view of the facts involved in the particu-
lar case. Abstract speculations cannot be here of much
value but this much can be profitably said: Reasonable
men govern their conduct by the circumstances which
are before them or known to them. They are not, and are
not supposed to be omniscient of the future. Hence they
can be expected to take care only when there is some-
thing before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee
harm as a result of the course actually pursued? If so, it
was the duty of the actor to take precautions to guard
against that harm. Reasonable foresight of harm, fol-
lowed by the ignoring of the suggestion borne of this
provision, is always necessary before negligence can be
held to exist (Picart vs. Smith, supra; also, People v. De los
CHAPTER 2 25
Supreme Court found that the actor could not have rea-
sonably foreseen the harm that would befall him, it was
ruled that he was not guilty of negligence (Civil Aero-
nautics Administration vs. Court of Appeals, et al., G.R. No.
L-51806, November 8, 1988).
8. In the civil law and at common law, three Degrees of
degrees of negligence were recognized, namely, slight negligence
negligence, ordinary negligence and gross negligence.
Slight negligence is the failure to exercise great or
extraordinary care. Ordinary negligence is the want of
ordinary care and diligence, that is, such care and dili-
gence as an ordinarily prudent person would exercise
under the same or similar circumstances. Gross negli-
gence is materially greater than ordinary negligence, and
consists of an entire absence of care or an absence of
even slight care or diligence; it implies a thoughtless
disregard for consequences or an indifference to the
rights or welfare of others (cf., 65 CJS at pp.536-539).
9. The concept itself is relative and compara- Nature of the
tive. The degree of care to be exercised depends upon concept
person, place and time. “Negligence is want of care re-
quired by the circumstances. It is a relative or compara-
tive not an absolute term, and its application depends
upon the situation of the parties, and the degree of care
and vigilance which the circumstances reasonably im-
pose.” (U.S. vs. Juanillo, G.R. No. 7255, October 3, 1912).
10. The operator of an automobile is bound to
exercise care in proportion to the varying danger and
risks of the highway and commensurate with the dan-
gers naturally incident to the use of such vehicle. He is
obliged to take notice of the conditions before him, and
if it is apparent that by a particular method of proceed-
ing he is liable to work an injury, it is his duty to adopt
some other or safer method if within reasonable care
and prudence he can do so. In determining the degree
of care an operator of an automobile should use, when
on the highway, it is proper to take into consideration
anything that indicates unusual or peculiar danger. Also,

the degree of care required to be exercised varies with
the capacity of the person endangered to care for him-
self. Thus, it has been held not to be negligence per se in
a boy of six to play on the highway, where an automo-
bile came up on him under circumstances which pro-
duced fright and terror, and thus caused an error of judg-
ment by which the body ran in front of the automobile.
(Thies vs. Thomas, 77 N. Y. Supp., 276.) And in Apperson
vs. Lazaro (Ind. App.), 87 N. E., 97, where an automobile
approached an infirm person from the car at a high rate
of speed and startled him so that in order to avoid the
injury he jumped aside and was struck by the automo-
bile, the court said that the conduct of the operator of
the automobile was an unreasonable abridgment of the
pedestrian’s right to the road (Ibid.).
11. In the above US case, the road on which they
were traveling was dotted with simple rural folk. It was
Sunday afternoon and the road connected two rather
populous towns that were close together. The victims
were two native farmers who all their lives have seen
nothing that moves faster than a bull cart, except in the
two or three occasions on which they testify they have
visited Iloilo, who cannot be expected to give an intelli-
gent idea of speed of an automobile, train, or even a fast
horse. The accused- chaffuer, being in charge of the pow-
erful machine, capable of doing great damage if not skill-
fully manipulated, was bound to use a high degree of
care to avoid injuring these native farmers, who had a
common right to the highway.
12. In Taylor vs. Manila Electric Railroad, et al., G.R.
No. 4977, March 22, 1910, it was said that “while it is the
general rule in regard to an adult that 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
“electricity is an agency, subtle and deadly.” The mea-

sure of care required of electric companies must be com-
mensurate with or proportionate to the danger. The duty
of exercising this high degree of diligence and care ex-
tends to every place where persons have a right to be
(Astudillo vs. Manila Electric Co., G.R. No. 33380, Decem-
ber 17, 1930).
Factors to be 17. In considering negligence, among the factors
considered to be taken into consideration are (1) his employment or
occupation; (2) his degree of intelligence; (3) his physi-
cal condition; and (4) other circumstances regarding per-
sons, time and place (cf., Pangonorom, et al. vs. People of
the Philippines, G.R. No. 143380, April 11, 2005). The dili-
gence with which the law requires the individual at all
times to govern his conduct varies with the nature of the
situation in which he is placed and with the importance
of the act which he is to perform (U. S. vs. Reyes, 1 Phil.
Rep., 375, 377).
18. Thus, where one is a professional public util-
ity driver, it was nighttime and it had just rained, it was
still drizzling and the road was slippery when the sub-
ject incident took place, and the bus was moving down-
hill, but the driver did not slow down but was instead
running very fast, the Supreme Court ruled there was
negligence on the part of the driver (Ibid. , Pangonorom et
al. vs. People). Also, “it is the duty of any person driving
a vehicle, and especially a street car, in the public thor-
oughfares to reduce the same to control ready to be
stopped at any moment if he sees a child below the age
of understanding in such a place that is can, by any
reasonable chance, place itself in a dangerous position
with respect to the vehicle. In such case the vehicle must
be under such control that, if the child, by some sudden
or unusual movement, places itself in the way of the
vehicle, it can be stopped in time to avert injury.” (United
States vs. Clemente, G.R. No. 8142, January 25, 1913). But
“boys 10 or 12 years of age who are permitted to go
about unattended may fairly be presumed to have sense
CHAPTER 2 29
19. Mere intoxication is not negligence, nor does

the mere fact of intoxication establish a want of ordinary
care. If a person’s conduct is characterized by a proper
degree of care and prudence, it is immaterial whether
he is drunk or sober (Wright vs. Manila Electric Company,
G.R. No. 7760, October 1, 1914).
20. If the law or contract does not state the dili-
gence which is to be observed in the performance, that
which is expected of a good father of a family shall be
required. (Art. 1173, NCC). In the absence of stipulation
or legal provision providing the contrary, the diligence
to be observed in the performance of the obligation is
that which is expected of a good father of a family (Syquia
vs. Court of Appeals, et al., G.R. No. 98695, January 27,
1993).
21. Lesser in degree compared to extraordinary
diligence required of common carriers, diligence of good
father of family may be likened to the requirement of
ordinary diligence. “The usual standard of care is such
care as a prudent person would exercise under the cir-
cumstances of a particular case.” (65 CJS 598).
22. But to constitute quasi-delict , it is not enough
to establish negligence. It is equally imperative that the
fault or negligence be the proximate cause of the dam-
age or injury suffered by the plaintiff (See American Ex-
press International vs. Cordero, G.R. No. 138550, October
14, 2005).
23. Proximate cause has been defined as: “. . . Proximate
‘that cause, which, in natural and continuous sequence, cause defined
unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have
occurred.’ And more comprehensively, the proximate le-
gal cause is that acting first and producing the injury,
either immediately or by setting other events in motion,
all constituting a natural and continuous chain of events,
each having a close causal connection with its immedi-
ate predecessor, the final event in the chain immediately
an ordinary prudent and intelligent person, have rea-

sonable ground to expect at the moment of his act or
default that an injury to some person might probably
result therefrom.” (McKee vs. Intermediate Appellate Court,
G.R. No. 68102, July 16, 1992).
24. “Proximate cause is determined by the facts
of each case upon mixed considerations of logic, com-
mon sense, policy and precedent” (The Consolidated Bank
& Trust Co. v. Court of Appeals, G.R. No. 138569, September
11, 2003, 410 SCRA 562).
25. The term has also been defined as the domi-
nant or immediate cause; the cause that sets the others
in motion; the efficient cause; the one that necessarily
sets the other causes in operation. An act or omission is
not the proximate cause of an injury unless, had it not
happened, the injury would not have occurred. The
proximate cause need not be the sole cause, or necessar-
ily the direct cause, or the one which is nearest in time
or place to the result (86 C.J.S. 943).
26. We seem to have also the adopted the above
“but-for” test because “[t]he omission to perform a duty,
such as the placing of warning signs on the site of the
excavation, constitutes the proximate cause only when
the doing of the said omitted act would have prevented
the injury.” (PLDT, Inc. vs. Court of Appeals, G.R. No. 57079,
September 29, 1989).
Concurrence 27. In order to render a person liable, negligence
of efficient need not be the sole cause of an injury. It is sufficient
causes that his negligence, concurring with one or more effi-
cient causes other than plaintiff’s, is the proximate cause
of the injury.
Accordingly, where several causes combine to pro-
duce injuries, a person is not relieved from liability be-
cause he is responsible for only one of them, it being
sufficient that the negligence of the person charged with
injury is an efficient cause without which the injury
CHAPTER 2 33
& c). Thus, a legal presumption arose that the bus driver
was negligent (Kapalaran Bus Line vs. Coronado, G.R. No.
85331, August 25, 1989).
33. There is prima facie presumption of negligence
on the part of the defendant if the death or injury results
from his possession of dangerous weapons or substances,
such as firearms and poison, except when the posses-
sion or use thereof is indispensable in his occupation or
business (Article 2188, NCC).
34. Also, “[w]here the thing which causes injury
is shown to be under the management of the defendant,
and the accident is such as in the ordinary course of
things does not happen if those who have the manage-
ment use proper care, it affords reasonable evidence, in
the absence of an explanation by the defendant, that the
accident arose from want of care.” (Cooley on Torts, Vol.
3, p. 369).
35. As Black’s Law Dictionary puts it: “Res ipsa Res ipsa
loquitur. The thing speaks for itself. Rebuttable presump- loquitur
tion or inference that defendant was negligent, which defined
arises upon proof that instrumentality causing injury was
in defendant’s exclusive control, and that the accident
was one which ordinarily does not happen in absence of
negligence. Res ipsa loquitur is rule of evidence whereby
negligence of alleged wrongdoer may be inferred from
mere fact that accident happened provided character of
accident and circumstances attending it lead reasonably
to belief that in absence of negligence it would not have
occurred and that thing which caused injury is shown to
have been under management and control of alleged
wrongdoer. Hillen v. Hooker Const. Co., Tex. Civ. App.,
484 S.W. 2d 133, 155. Under doctrine of “res ipsa loqui-
tur” the happening of an injury permits an inference of
negligence where plaintiff produces substantial evidence
that injury was caused by an agency or instrumentality
under exclusive control and management of defendant,
and that the occurrence was such that in the ordinary
36. In this jurisdiction, we have applied this doc-

trine in quite a number of cases, notably in Africa et al.
vs. Caltex, Inc., et al. (L-12986, March 31, 1966, 16 SCRA
448), and the latest is in the case of F.F. Cruz and Co.,
Inc. vs. CA (L-52732, August 29, 1988).
37. The doctrine of Res ipsa loquitur as a rule of
evidence is peculiar to the law of negligence which rec-
ognizes that prima facie negligence may be established
without direct proof and furnishes a substitute for spe-
cific proof of negligence. The doctrine is not a rule of
substantive law but merely a mode of proof or a mere
procedural convenience. The rule, when applicable to
the facts and circumstances of a particular case, is not
intended to and does not dispense with the requirement
of proof of culpable negligence on the part of the party
charged. It merely determines and regulates what shall
be prima facie evidence thereof and facilitates the bur-
den of plaintiff of proving a breach of the duty of due
care (Corpus Juris Secundum, Vol. 65A). It is not a rule of
substantive law and, as such, it does not create an inde-
pendent ground of liability. Instead, it is regarded as a
mode of proof, or a mere procedural convenience since
it furnishes a substitute for, and relieves the plaintiff of,
the burden of producing specific proof of negligence.
The maxim simply places on the defendant the burden
of going forward with the proof. Resort to the doctrine
may be allowed only when (a) the event is of a kind
which does not ordinarily occur in the absence of negli-
gence; (b) other responsible causes, including the con-
duct of the plaintiff and third persons, are sufficiently
eliminated by the evidence; and (c) the indicated negli-
gence is within the scope of the defendant’s duty to the
plaintiff. Thus, it is not applicable when an unexplained
accident may be attributable to one of several causes, for
some of which the defendant could not be responsible
(FGU Insurance Corp. vs. G. P. Sarmiento Trucking Corp. et
al., G.R. No. 141910, August 6, 2002).
Th wh
CHAPTER 2 35
from the doctrine cannot be availed of, or is overcome,

where plaintiff has knowledge and testifies or presents
evidence as to the specific act of negligence which is the
cause of the injury complained of or where there is di-
rect evidence as to the precise cause of the accident and
all the facts and circumstances attendant on the occur-
rence clearly appear. Finally, once the actual cause of
injury is established beyond controversy, whether by the
plaintiff or by the defendant, no presumptions will be
involved and the doctrine becomes inapplicable when
the circumstances have been so completely eludicated
that no inference of defendant’s liability can reasonably
be made, whatever the source of the evidence (Ibid.).
39. The presumption of res ipsa loquitur therefore
applies when there is no direct proof or evidence of cause
of injury but the thing or instrumentality causing injury
is under the exclusive control and use of the defendant
and the accident is one which ordinarily does not hap-
pen unless one is negligent.
40. Res ipsa loquitur is an evidentiary presump-
tion, therefore, it is not to be invoked to overcome evi-
dence but to be applied only in its absence. Hence, when-
ever the doctrine is applied, the query is not whether
the accident rarely happens, but that whether when it
occurs, it is ordinarily the result of negligence.
41. Res ipsa loquitur has application only to the
law of negligence (63 AmJur 2d at 721). It is confined
only to cases of pure (non-contractual) tort since obvi-
ously the presumption of negligence in culpa contractual
immediately attaches by a failure of the covenant or its
tenor (FGU Insurance Corp. vs. G. P. Sarmiento Trucking
Corp. et al., supra).
42. Where the doctrine is applicable, all that the
plaintiff must prove is the accident itself; no other proof
of negligence is required beyond the accident itself. It
relates to the fact of an injury that sets out an inference
to the cause thereof or establishes the plaintiff’s
CHAPTER 3 51
NATURE OF LIABILITY
graph of Article 2180 of the Civil Code which provides

that the responsibility therein mentioned shall cease if
the employers prove that they observed all the diligence
of a good father of a family to prevent damages” (Poblete
vs. Fabros, G.R. No. L-29803, September 14, 1979 also cited
in Tiu vs. Arriesgado, et al., G.R. No. 138060, September 1,
2004).
Under the civil law, an employer is liable for the
negligence of his employees in the discharge of their
respective duties, the basis of which liability is not
respondeat superior , but the relationship of pater familias ,
which theory bases the liability of the master ultimately
on his own negligence and not on that of his servant
(Cuison v.v. Norton and Harrison Co., 55 Phil. 18).
1 8). Before
an employer may be held liable for the negligence of his
employee, the act or omission which caused damage
must have occurred while an employee was in the ac-
tual performance of his assigned tasks or duties (Francis
High School vs. Court of Appeals, 194 SCRA 341). In
defining an employer’s liability for the acts done within
the scope of the employee’s assigned tasks, the Supreme
Court has held that this includes any act done by an
employee, in furtherance of the interests of the employer
or for the account of the employer at the time of the
infliction of the injury or damage (Filamer Christian Insti-
tute vs. Intermediate Appellate Court, 212 SCRA 637).
Under the civil law on culpa aquiliana , an employer
is liable for the negligence of his employees in the dis-
charge of their respective duties, the basis of which
liability is not respondeat superior , but the relationship of
familias , which theory bases the liability of the mas-
pater familias
ter ultimately on his own negligence and not on that of
his servant (Cuison v. Norton and Harrison Co., 55 Phil.
18). This is the notable peculiarity of the Spanish law of
negligence. It is, of course, in striking contrast to the
American doctrine that, in relations with strangers, the
negligence of the servant is conclusively the negligence
of the master (Cerf vs. Medel, G.R. No. 10351, December
employer can prove there was no negligence on his part

at all, that is, if he can prove due diligence in the selec-
tion and supervision of his driver) (See 8th par. of Art.
2180, Art. 2194, Civil
Civ il Code; also People vs. Navoa, 132 SCRA
412; People vs. Tirol, 102 SCRA 558; People vs. Sandaydiego,
82 SCRA 120).
Under Article 2180 of the Civil Code, the liability
of the employer is direct or immediate. It is not condi-
tioned upon prior recourse against the negligent em-
ployee and a prior showing of insolvency of such em-
ployee (L.G. Foods Corporation and Victorino Gabor, Vice-
President and General Manager, Petitioners, versus Hon.
Philadelfa B. Pagapong-Agraviador, et al., G.R. No. 158995,
September 26, 2006).
35. Th
Thee resp
respon
onsib
sibili
ility
ty tr
treat
eated
ed of in thi
thiss arti
article
cle
shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a
family to prevent damage (Art. 2180, NCC, last par.).
36. Th
36. Thee “dil
“dilig
igen
ence
ce of a good
good fafath
ther
er”” ref
refer
erre
red
d to
to
in the last paragraph of the aforecited statute means dili-
gence in the selection and supervision of employees.
Thus, when an employee, while performing his duties,
causes damage to persons or property due to his own
negligence, there arises the juris tantum presumption that
the employer is negligent, either in the selection of the
employee or in the supervision over him after the selec-
tion (Pantranco North Express, Inc. v. Baesa, G.R. Nos. 79050-
79050 -
51, 14 November 1989, 179 SCRA 384).
37. Su
37. Supe
pervi
rvisio
sion
n incl
includ
udes
es the
the for
formu
mula
latio
tion
n of su
suit
it--
able rules and regulation for the guidance of its employ-
ees and the issuance of proper instructions intended for
the protection of the public and persons with whom the
employer has relations through his employees (Bahia v.
Litonjua and Leynes, supra, at p. 628; Phoenix Construction,
Inc. v. Intermediate Appellate Court, 148 SCRA 353 [1987]).
An employer is expected to impose upon its employees
the necessary discipline called for in the performance of
CHAPTER 3 53
NATURE OF LIABILITY
38. Em
Emplploy
oyer
erss hav
havee the
the bu
burd
rden
en of pr
prov
ovin
ing
g tha
thatt
they have indeed exercised such diligence, both in the
selection of the employee and in the supervision of the
performance of his duties.
39. In the
39. the sel
selec
ectio
tion
n of
of pros
prospe
pect
ctiv
ivee empl
employ oyee
ees,
s,
employers are required to examine them as to their
the ir quali-
fications, experience and service records. With respect
to the supervision of employees, employers must for-
mulate standard operating procedures, monitor their
implementation and impose disciplinary measures for
breaches thereof.
thereof. These facts must be shown by concrete
concrete
proof, including documentary evidence (V (Victory
ictory Liner
Line r vs.
Malecdan, supra).
Case law teaches that for an employer to have ex-
ercised the diligence of a good father of a family, he
should not be satisfied with the applicant’s mere pos-
session of a professional driver’s license; he must also
carefully examine the applicant for employment as to
his qualifications, his experience and record of service.
(Yambao vs. Zuniga, et al., G.R. No. 146173, December 11,
2003).
40. In a cas
case,
e, it was
was ru
rule
led
d tha
thatt the
the em
empl
ploy
oyerer di
did
d
not exercise due supervision after his selection when it
was noted that the employer did not present any proof
that she drafted and implemented training programs and
guidelines on road safety for her employees. The record
is bare of any showing that the employer required the
employee (Venturina) to attend periodic seminars on
road safety and traffic efficiency. Hence, the employer
cannot claim exemption from any liability arising from
the recklessness or negligence of Venturina (Ibid.).
41. ThThee fail
failur
uree of
of the
the def
defen
enda
dant
nt co
comp
mpan
any
y to pr
pro-
o-
duce in court any ‘record’ or other documentary proof
tending to establish that it had exercised all the dili-
gence of a good father of a family in the selection and
supervision of its drivers and buses, notwithstanding
the calls therefor by both the trial court and the oppos-
with any other evidence, object or documentary, which

might obviate the apparent biased nature of the testi-
mony (cf., Syki vs. Begasa, G.R. No. 149149, October 23,
2003 citing Metro Manila Transit Corporation vs. Court of
Appeals, 223 SCRA 521 [1993]).
42. In the selection of prospective employees, em-
ployers are required to examine them as to their qualifi-
cations, experience, and service records.
On the other hand, with respect to the supervision
of employees, employers should formulate standard op-
erating procedures, monitor their implementation, and
impose disciplinary measures for breaches thereof. To
establish these factors in a trial involving the issue of
vicarious liability,
liability, employers must submit concrete proof,
including documentary evidence (Metro Manila Transit
[199 8]).
Corporation vs. Court of Appeals, 298 SCRA 495 [1998])
43. Ba
43. Based
sed thther
eref
efor
oree on jur
jurisp
ispru
rude
dent
ntial
ial law
law,, the
the
employer must not merely present testimonial evidence
to prove that he observed the diligence of a good father
of a family in the selection and supervision of his em-
ployee, but he must also support such testimonial evi-
dence with concrete or documentary evidence. The rea-
son for this is to obviate the biased nature of the
employer’s testimony or that of his witnesses (Syki vs.
Begasa, supra, citing MMTC vs. CA, 298 SCRA 495).
44. In a case
44. case,, the
the em
emplploy
oyer’s
er’s evid
eviden
ence
ce co
cons
nsis
iste
ted
d
entirely of testimonial evidence. He testified that before
he hired Elizalde Sablayan, he required him to submit a
police clearance in order to determine if he was ever
involved in any vehicular accident. He also required
Sablayan to undergo a driving test conducted by his
mechanic, Esteban Jaca. Employer claimed that he, in
fact, accompanied Sablayan during the driving test and
that during the test, Sablayan was taught to read and
understand traffic signs like
l ike “Do Not
N ot Enter,” “One Way
Way,”,”
“Left Turn” and “Right Turn.” The alleged police clear-
CHAPTER 3 55
NATURE OF LIABILITY
stantiated and self-serving testimonies were, without

doubt, insufficient to overcome the legal presumption
that there was negligence in the selection and supervi-
sion of the erring driver (Syki vs. Begasa, supra).
45. To fend off vicarious liability, employers must
submit concrete proof, including documentary evidence,
that they complied with everything that was incumbent
on them (Perla Compania de Seguros vs. Sps. Sarangaya,
G.R. No. 147746, October 25, 2005).
46. In an action based on quasi delict , the regis-
tered owner of a motor vehicle is solidarily liable for the
injuries and damages caused by the negligence of the
driver, in spite of the fact that the vehicle may have al-
ready been the subject of an unregistered Deed of Sale
in favor of another person. Unless registered with the
Land Transportation Office, the sale — while valid and
binding between the parties — does not affect third par-
ties, especially the victims of accidents involving the said
transport equipment. Thus, in a case the registered owner
was held liable for the acts of the driver employed by its
former lessee who has become the owner of that vehicle
by virtue of an unregistered Deed of Sale (Equitable Leas-
ing Corporation vs. Suyom, et al., G.R. No. 143360, Septem-
ber 5, 2002).
47. But may the terms “employers” and “owners
and managers of an establishment or enterprise” (dueños
o directores de un establicimiento o empresa) used in
Article 2180 of the Civil Code, formerly Article 1903 of
the old Code, embrace the manager of a corporation own-
ing a truck, the reckless operation of which allegedly
resulted in the vehicular accident from which the dam-
age arose?
The Supreme Court held that those terms do not
include the manager of a corporation. It may be gath-
ered from the context of Article 2180 that the term “man-
ager” (“director” in the Spanish version) is used in the
sense of “employer”. Hence, under the allegations of
already mentioned because he himself may be regarded

as an employee or dependiente of his employer, Phil-
American Forwarders, Inc. (Phil Bus Rabbit vs. Phil-Ameri-
can Forwarders, 63 SCRA 232).
Employer’s 48. Under Article 2180 of the New Civil Code,
vicarious employers are primarily liable for their negligence ei-
liability under ther in the selection or supervision of their employees.
Art. 2180 and
This liability is independent of the employee’s own li-
employer’s
subsidiary
ability for fault or negligence and is distinct from the
liability under subsidiary civil liability under Article 103 of the Revised
Art. 100 of Penal Code. The civil action against the employer may
RPC distin- therefore proceed independently of the criminal action
guished pursuant to Rule 111 Section 3 of the Rules of Court.
49. The vicarious liability of an employer for the
fault or negligence of an employee is founded on at least
two specific provisions of law. The first is expressed in
Article 2176, in relation to Article 2180, of the Civil Code
which would allow an action predicated on quasi-delict
to be instituted by the injured party against the employer
for an act or omission of the employee and would neces-
sitate only a preponderance of evidence in order to pre-
vail. Here, the liability of the employer for the negligent
conduct of the subordinate is direct and primary subject
to the defense of due diligence in the selection and su-
pervision of the employee. The enforcement of the judg-
ment against the employer for an action based on Ar-
ticle 2176 does not require the employee to be insolvent
since the nature of the liability of the employer with that
of the employee, the two being statutorily considered
joint tortfeasors, is solidary. The second, predicated on
Article 103 of the Revised Penal Code, provides that an
employer may be held subsidiarily liable for a felony
committed by his employee in the discharge of his duty.
This liability attaches when the employee is convicted
of a crime done in the performance of his work and is
found to be insolvent that renders him unable to prop-
erly respond to the civil liability adjudged (Rafael Reyes
Trucking Corporation vs. People et al., G.R. No. 129029, April
CHAPTER 3 57
NATURE OF LIABILITY
Revised Penal Code, for civil liability ex delicto; or

(2) under Article 2176 of the Civil Code, for civil liability
ex quasi delicto.
Under Article 103 of the Revised Penal Code, em-
ployers may be held subsidiarily liable for felonies com-
mitted by their employees in the discharge of the latter’s
duties. This liability attaches when the employees who
are convicted of crimes committed in the performance
of their work are found to be insolvent and are thus
unable to satisfy the civil liability adjudged. In order
that an employer may be held subsidiarily liable for the
employee’s civil liability in the criminal action, it need
only be shown (1) that the employer, etc. is engaged in
any kind of industry, (2) that the employee committed
the offense in the discharge of his duties and (3) that he
is insolvent (Basa Marketing Corp. v. Bolinao, 117 SCRA
156). The subsidiary liability of the employer arises after
conviction of the employee in the criminal action. When
all these requisites present, the employer becomes ipso
facto subsidiarily liable upon the employee’s conviction
and upon proof of the latter’s insolvency (Carpio vs.
Doroja, et al., G.R. No. 84516, December 5, 1989).
On the other hand, under Article 2176 in relation
to Article 2180 of the Civil Code, an action predicated on
quasi delict may be instituted against the employer for
an employee’s act or omission. The liability for the neg-
ligent conduct of the subordinate is direct and primary,
but is subject to the defense of due diligence in the selec-
tion and supervision of the employee. The enforcement
of the judgment against the employer for an action based
on Article 2176 does not require the employee to be in-
solvent, since the liability of the former is solidary — the
latter being statutorily considered a joint tortfeasor. To
sustain a claim based on quasi delict , the following requi-
sites must be proven: (a) damage suffered by the plain-
tiff, (b) fault or negligence of the defendant, and (c)
connection of cause and effect between the fault or neg-
ligence of the defendant and the damage incurred by
the same act or omission” or under both causes. Since

these two civil liabilities are distinct and independent of
each other, the failure to recover in one will not neces-
sarily preclude recovery in the other (Equitable Leasing
Corp. vs. Suyom, et al., supra).
51. Distinction should thus be made between the
subsidiary liability of the employer under the Revised
Penal Code and the employer’s primary liability under
the Civil Code which is quasi-delictual or tortious in char-
acter.
The first type of liability is governed by Articles
102 and 103 of the Revised Penal Code while the second
kind is governed by the provisions of the Civil Code.
Under Article 103 of the Revised Penal Code, liability
originates from a delict committed by the employee who
is primarily liable therefor and upon whose primary li-
ability his employer’s subsidiary liability is to be based.
Before the employer’s subsidiary liability may be pro-
ceeded against, it is imperative that there should be a
criminal action whereby the employee’s criminal negli-
gence or delict and corresponding liability therefor are
proved. If no criminal action was instituted, the
employer’s liability would not be predicated under Ar-
ticle 103. The conviction of the employee primarily li-
able is a condition sine qua non for the employer’s sub-
sidiary liability. There can be no automatic subsidiary
liability of defendant employer under Article 103 of the
Revised Penal Code where his employee has not been
previously criminally convicted (Franco, et al. vs. Inter-
mediate Appellate Court, et al., G.R. No. 71137, October 5,
1989). But upon his employee’s conviction, and subse-
quent proof of inability to pay, it is already a settled rule
that the subsidiary liability of an employer automati-
cally arises (cf., Alvarez vs. Court of Appeals, et al., G.R.
No. L-59621, February 23, 1998).
52. As elsewhere mentioned, an employer’s li-
ability based on a quasi-delict is primary and direct, while
by the same Law 3, Title 15, Partida 7, on that the person
obligated, by his own fault or negligence, takes part in
the act or omission of the third party who caused the
damage. It follows therefrom that the State by virtue of
such provision of law, is not responsible for the dam-
ages suffered by private individuals in consequence of
acts performed by its employees in the discharge of the
functions pertaining to their office, because neither fault
nor even negligence can be presumed on the part of the
state in the organization of branches of the public ser-
vice and in the appointment of its agents; on the con-
trary, we must presuppose all foresight humanly pos-
sible on its part in order that each branch of service serves
the general weal and that of private persons interested
in its operation. Between these latter and the state there-
fore, no relations of a private nature governed by the
civil law can arise except in a case where the state acts as
a judicial person capable of acquiring rights and con-
tracting obligations.” (Supreme Court of Spain, January
7, 1898; 83 Jur. Civ., 24 cited in E. Meritt vs. Government of
Philippine Islands, supra).
62. Article 2180 of the Civil Code establishes a
rule of liability, not suability. The government may be
held liable under this rule only if it first allows itself to
be sued through any of the accepted forms of consent.
Moreover, the agent performing his regular functions is
not a special agent even if he is so denominated, as in
the case at bar. No less important, the said provision
appears to regulate only the relations of the local state
with its inhabitants and, hence, applies only to the Phil-
ippine government and not to foreign governments im-
pleaded in our courts (United States of America vs. Guinto,
et al., G.R. No. 76607, February 26, 1990).
Provinces, 63. As for local government units, “provinces, cit-
cities and ies and municipalities shall be liable for damages for the
municipalities death of, or injuries suffered by, any person by reason of
the defective condition of roads, streets, bridges, public
buildings, and other public works under their control or
CHAPTER 3 63
NATURE OF LIABILITY
municipalities . . . liable for damages for the death of, or

injury suffered by, any person by reason” — specifically
— “of the defective condition of roads, streets, bridges,
public buildings, and other public works under their
control or supervision.” (City of Manila vs. Teotico, G.R.
No. L-23052, January 29, 1968).
65. While the charter of the local government unit
concerned may lay down general rules regulating the
liability of the city, Article 2189 applies in particular to
the liability arising from “defective streets, public build-
ings and other public works.” (Guilatco vs. City of
Dagupan, et al., G.R. No. 61516, March 21, 1989).
66. Under Article 2189 of the Civil Code, it is not
necessary for the liability therein established to attach
that the defective roads or streets belong to the prov-
ince, city or municipality from which responsibility is
exacted. What said article requires is that the province,
city or municipality have either “control or supervision”
over said street or road. Thus, even if the subject avenue
were a national highway, this circumstance would not
necessarily detract from its “control or supervision” by
the subject local government unit (cf., City of Manila vs.
Teotico, supra, also, Jimenez vs. City of Manila and Interme-
diate Appellate Court, G.R. No. 71049, March 29, 1987).
67. Moreover, “local government units and their
officials are not exempt from liability for death or injury
to persons or damage to property.” (Section 24, Local Gov-
ernment Code).
68. In San Fernando La Union vs. Firme, G.R. No.
52179, April 8, 1991, the Supreme Court held “[a]nent
the issue of whether or not the municipality is liable for
the torts committed by its employee, the test of liability
of the municipality depends on whether or not the driver,
acting in behalf of the municipality, is performing gov-
ernmental or proprietary functions. As emphasized in
the case of Torio v. Fontanilla (G.R. No. L-29993, Octo-
606), the
remarked that municipal corporations are suable because

their charters grant them the competence to sue and be
sued. Nevertheless, they are generally not liable for torts
committed by them in the discharge of governmental
functions and can be held answerable only if it can be
shown that they were acting in a proprietary capacity.”
However, with the passage of the Local Govern-
ment Code in 1992, two schools of thought emerged
regarding Section 24. One holds on to the doctrine
announced in San Fernando case, supra, that the munici-
pality is answerable only when it is acting in propri-
etary capacity. The other postulates that local govern-
ment units are liable for death or injury to persons or
damage to property, without any qualification as none
is found in the legal provision.
Vicarious 69. Teachers or heads of establishments of arts
liability of and trades shall be liable for damages caused by their
teachers and pupils and students or apprentices, so long as they re-
heads of main in their custody (Art. 2180, NCC, 7th par.).
establish-
ments of arts 70. In the case of Exconde vs. Capuno, et al., G.R.
and trade No. L-10134, June 29, 1957 , the Supreme Court interpreted
the provision to mean that “teachers or directors of arts
and trades are liable for any damages caused by their
pupils or apprentices while they are under their cus-
tody, but this provision only applies to an institution of
arts and trades and not to any academic educational
institution.”
Also in Mercado vs. Court of Appeals, G.R. No.
L-14342, May 30, 1960, it was said that Article 2180 of the
new Civil Code contemplates a situation where the pu-
pil lives and boards with the teacher, such that the con-
trol, direction and influence on the pupil supersede those
of the parents. In these circumstances the control or in-
fluence over the conduct and actions of the pupil would
pass from the father and mother to the teacher, and so
would the responsibility for the torts of the pupil.
71 H , i Amadora vs. Court of Appeals, et
CHAPTER 3 65
NATURE OF LIABILITY
Where the school is academic rather than technical or

vocational in nature, responsibility for the tort commit-
ted by the student will attach to the teacher in charge of
such student, following the first part of the provision.
This is the general rule. In other words, teachers in gen-
eral shall be liable for the acts of their students except
where the school is technical in nature, in which case it
is the head thereof who shall be answerable. There is
really no substantial distinction between the academic
and the non-academic schools insofar as torts commit-
ted by their students are concerned. The same vigilance
is expected from the teacher over the students under his
control and supervision, whatever the nature of the
school where he is teaching. Article 2180 of the Civil
Code provides: “Lastly, teachers or heads of establish-
ments of arts and trades shall be liable for damages
caused by their pupils and students or apprentices so
long as they remain in their custody.” Following the
canon of reddendo singula singulis , “teachers should ap-
ply to the words “pupils and student’s and “heads of
establishments of arts and trades” to the word “appren-
tices.”
72. The reason for the disparity can be traced to
the fact that historically the head of the school of arts
and trades exercised a closer tutelage over his pupils
than the head of the academic school. The old schools of
arts and trades were engaged in the training of artisans
apprenticed to their master who personally and directly
instructed them on the technique and secrets of their
craft. The head of the school of arts and trades was such
a master and so was personally involved in the task of
teaching his students, who usually even boarded with
him and so came under his constant control, supervi-
sion and influence. By contrast, the head of the academic
school was not as involved with his students and exer-
cised only administrative duties over the teachers who
were the persons directly dealing with the students. The
head of the academic school had then (as now) only a
in the exercise of a legitimate student right, and even in

the enjoyment of a legitimate student privilege, the re-
sponsibility of the school authorities over the student
continues. Indeed, even if the student should be doing
nothing more than relaxing in the campus in the com-
pany of his classmates and friends and enjoying the am-
bience and atmosphere of the school, he is still within
the custody and subject to the discipline of the school
authorities under the provisions of Article 2180 (Amadora
vs. Court of Appeals, supra)
76. During all these occasions, it is obviously the
teacher-in-charge who must answer for his students’
torts, in practically the same way that the parents are
responsible for the child when he is in their custody. The
teacher-in-charge is the one designated by the dean, prin-
cipal, or other administrative superior to exercise super-
vision over the pupils in the specific classes or sections
to which they are assigned. It is not necessary that at the
time of the injury, the teacher be physically present and
in a position to prevent it. Custody does not connote
immediate and actual physical control but refers more
to the influence exerted on the child and the discipline
instilled in him as a result of such influence. Thus, for
the injuries caused by the student, the teacher and not
the parent shall be held responsible if the tort was com-
mitted within the premises of the school at any time
when its authority could be validly exercised over him
(Ibid.).
77. The teacher will be held liable not only when
he is acting in loco parentis for the law does not require
that the offending student be of minority age. Unlike
the parent, who will be liable only if his child is still a
minor, the teacher is held answerable by the law for the
act of the student under him regardless of the student’s
age. Thus, in the Palisoc case, liability attached to the
teacher and the head of the technical school although
the wrongdoer was already of age. In this sense, Article
2180 treats the parent more favorably than the teacher
CHAPTER 3 69
NATURE OF LIABILITY
the protective and supervisory custody that the school

and its heads and teachers exercise over the pupils and
students for as long as they are at attendance in the
school, including recess time. A “recess,” as the concept
is embraced in the phrase “at attendance in the school,”
contemplates a situation of temporary adjournment of
school activities where the student still remains within
call of his mentor and is not permitted to leave the school
premises, or the area within which the school activity is
conducted. Recess by its nature does not include dis-
missal. Likewise, the mere fact of being enrolled or be-
ing in the premises of a school without more does not
constitute “attending school” or being in the “protective
and supervisory custody” of the school, as contemplated
in the law (Salvosa, et al. vs. Intermediate Appellate Court,
G.R. No. L-70458, October 5, 1988).
79. The liability imposed by this article is sup-
posed to fall directly on the teacher or the head of the
school of arts and trades and not on the school itself. If
at all, the school, whatever its nature, may be held to
answer for the acts of its teachers or even of the head
thereof under the general principle of respondeat supe-
rior, but then it may exculpate itself from liability by
proof that it had exercised the diligence of a bonus pater-
familias (Amadora vs. Court of Appeals, supra).
80. However, under Article 218 of the Family
Code, the following shall have special parental author-
ity over a minor child while under their supervision,
instruction or custody: (1) the school, its administrators
and teachers; or (2) the individual, entity or institution
engaged in child care. This special parental authority
and responsibility applies to all authorized activities,
whether inside or outside the premises of the school,
entity or institution. Thus, such authority and responsi-
bility applies to field trips, excursions and other affairs
of the pupils and students outside the school premises
whenever authorized by the school or its teachers (St.
Mary’s Academy vs. Carpitanos, et al., G.R. No. 143363,
administrators and teachers shall be principally and

solidarily liable for damages caused by the acts or omis-
sions of the unemancipated minor. The parents, judicial
guardians or the persons exercising substitute parental
authority over said minor shall be subsidiarily liable.
The respective liabilities shall not apply [only] if it is
proved that they exercised the proper diligence required
under the particular circumstances (cf., Article 219, Fam-
ily Code).
82. In PSBA v. CA, (G.R. No. 84698, 4 February
1992) the Court held that Article 2180 of the Civil Code
was not applicable where a student had been injured by
one who was an outsider or by one over whom the school
did not exercise any custody or control or supervision.
83. However, in Soliman, Jr. vs. Hon. Tuazon, G.R.
No. 66207, May 18, 1992 , the Supreme Court emphasized
that an implied contract may be held to be established
between a school which accepts students for enrollment,
on the one hand, and the students who are enrolled, on
the other hand, which contract results in obligations for
both parties: “When an academic institution accepts stu-
dents for enrollment, there is established a contract be-
tween them, resulting in bilateral obligations which par-
ties are bound to comply with. For its part, the school
undertakes to provide the student with an education
that would presumably suffice to equip him with the
necessary tools and skills to pursue higher education or
a profession. On the other hand, the student covenants
to abide by the school’s academic requirements and ob-
serve its rules and regulations. Institutions of learning
must also meet the implicit or ‘built-in’ obligation of
providing their students with an atmosphere that pro-
motes or assists in attaining its primary undertaking of
imparting knowledge. Certainly, no student can absorb
the intricacies of physics or higher mathematics or ex-
plore the realm of the arts and other sciences when bul-
lets are flying or grenades exploding in the air or where
there looms around the school premises a constant threat
CHAPTER 3 71
NATURE OF LIABILITY
84. Also, the school may be held liable in its ca-

pacity as employer. Hence, the negligent act of a profes-
sor who fails to observe the rules of the school, for in-
stance by not promptly submitting a student’s grade, is
not only imputable to the professor but is an act of the
school, being his employer (University of the East vs. Jader,
G.R. No. 132344, February 17, 2000).
85. The proprietor of a building or structure is Proprietor of
responsible for the damages resulting from its total or building or
partial collapse, if it should be due to the lack of neces- structure
sary repairs. Proprietors shall also be responsible for
damages caused: (1) By the explosion of machinery which
has not been taken care of with due diligence, and the
inflammation of explosive substances which have not
been kept in a safe and adequate place; (2) By excessive
smoke, which may be harmful to persons or property;
(3) By the falling of trees situated at or near highways or
lanes, if not caused by force majeure; (4) By emanations
from tubes, canals, sewers or deposits of infectious mat-
ter, constructed without precautions suitable to the place.
If damage referred to in the two preceding articles should
be the result of any defect in the construction mentioned
in Article 1723, the third person suffering damages may
proceed only against the engineer or architect or con-
tractor in accordance with said article, within the period
therein fixed. (Articles 2190-2192, NCC. See also De Roy,
et al. vs. Court of Appeals, et al., G.R. No. L-80718, January
29, 1988).
CHAPTER 4 81
DEFENSES IN AN ACTION FOR QUASI-DELICT
caused by his own negligence (Delsan Transport Lines,

Inc. vs. C & A Construction Inc., G.R. No. 156034, October
1, 2003).
25. An action for quasi-delict must be instituted Prescription
within four years (Art. 1146, NCC).
26. The prescriptive period begins from the day
the quasi-delict is committed. In Paulan vs. Sarabia , the
Supreme Court ruled that in an action for damages aris-
ing from the collision of two (2) trucks, the action being
based on a quasi-delict , the four (4) year prescriptive pe-
riod must be counted from the day of the collision
(Kramer vs. Court of Appeals, et al., G.R. No. 83524, October
13, 1989).
27. In an action for damages arising from the col-
lision of two (2) vessels the four (4) year prescriptive
period must be counted from the day of the collision.
The aggrieved party need not wait for a determination
by an administrative body like a Board of Marine In-
quiry, that the collision was caused by the fault or negli-
gence of the other party before he can file an action for
damages (Kramer vs. Court of Appeals, supra ).
28. For persons held vicariously liable, the proper Diligence of
defense is the exercise of diligence of a good father of good father
the family (last par., Art. 2180, NCC and Art. 219, Family of family
Code of the Philippines). In the case of employer held vi-
cariously liable, the proper defense is the exercise of all
the diligence of a good father of a family in the selection
and supervision of his employees (Franco et al. vs. Inter-
mediate Appellate Court, et al., G.R. No. 71137, October 5,
1989). But note that the defense of “exercise of due care
in their selection and supervision . . . is not applicable to
obligations arising ex contractu , but only to extra-con-
tractual obligations — or to use the technical form of
expression, [the defense] relates only to culpa aquiliana
and not to culpa contractual” (Cangco vs. Manila Railroad
Co., supra).
Th th
G.R. No. 119602, October 6, 2000). Whether or not the

diligence of a good father of a family has been observed
by petitioner is a matter of proof (Metro Manila Transit
Corporation vs. Court of Appeals, et al., G.R. No. 104408,
June 21, 1993). The employer must adduce sufficient proof
that it exercised such degree of care (Secosa vs. Francisco,
G.R. No. 160039, June 29, 2004).
30. A master who exercises all possible care in
the selection of his servant, taking into consideration
the qualifications they should possess for the discharge
of the duties which it is his purpose to confide to them,
and directs them with equal diligence, thereby performs
his duty to third persons to whom he is bound by no
contractual ties, and he incurs no liability whatever if,
by reason of the negligence of his servants, even within
the scope of their employment, such third persons suf-
fer damage (Cangco vs. Manila Railroad Co., supra).
Partial 31. The doctrine of contributory negligence may
defense: also be invoked, albeit only as a partial defense. “When
Doctrine of the plaintiff’s own negligence was the immediate and
contributory proximate cause of his injury, he cannot recover dam-
negligence ages. But if his negligence was only contributory, the
immediate and proximate cause of the injury being the
defendant’s lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to
be awarded.” (Article 2179, NCC).
32. In American jurisprudence, any negligence,
however slight, on the part of the person injured which
is one of the causes proximately contributing to his in-
jury, bars his recovery. But in some civil law countries
like France, the contributory negligence did not exoner-
ate the defendants whose fault had been the immediate
cause of the accident, but entitled him to a reduction of
damages.
33. In the Philippines, the negligence of the in-
jured person contributing to his injury but not being one
of the determining causes of the principal accident, does
CHAPTER 4 83
DEFENSES IN AN ACTION FOR QUASI-DELICT
L-1719, January 23, 1907). The underlying precept of the

above article on contributory negligence is that a plain-
tiff who is partly responsible for his own injury should
not be entitled to recover damages in full but must bear
the consequences of his own negligence. The defendant
must thus be held liable only for the damages actually
caused by his negligence (Syki vs. Begasa, G.R. No. 149149,
October 23, 2003).
34. Contributory negligence has been defined as Contributory
“the act or omission amounting to want of ordinary care negligence
on the part of the person injured which, concurring with distinguished
the defendant’s negligence, is the proximate cause of from the
the injury.” It has been held that “to hold a person as doctrine of
last clear
having contributed to his injuries, it must be shown that chance
he performed an act that brought about his injuries in
disregard of warnings or signs of an impending danger
to health and body.” (Ma-ao Sugar Central Co. vs. Court of
Appeals, G.R. No. 83491, August 27, 1990).
But where both parties are guilty of negligence,
but the negligent act of one succeeds that of the other by
an appreciable interval of time, the one who has the last
reasonable opportunity to avoid the impending harm
and fails to do so is chargeable with the consequences,
without reference to the prior negligence of the other
party [under the doctrine of last clear chance] (Picart vs.
Smith, G.R. No. L-12219, March 15, 1918). This is the dif-
ference between the concepts of contributory negligence
and doctrine of last clear chance.
35. There is a conclusive presumption that favors
children below nine (9) years old in that they are inca-
pable of contributory negligence. Citing Sangco , the Su-
preme Court ruled that “[i]n our jurisdiction, a person
under nine years of age is conclusively presumed to have
acted without discernment, and is, on that account, ex-
empt 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,
analogy, conclusively presumed to be incapable of neg-

ligence; and that the presumption of lack of discern-
ment 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.”
(Jarco Marketing Corp. vs. Court of Appeals, et al., G.R. No.
129792, December 21, 1999).
36. With the passage of Republic Act 9344, other-
wise known as the Juvenile Justice and Welfare Act of
2006, the minimum age of criminal responsibility has
been raised to fifteen. As provided in Section 6 thereof,
“a child fifteen (15) years of age or under at the time of
the commission of the offense shall be exempt from crimi-
nal liability. However, the child shall be subjected to an
intervention program xxx. A child above fifteen (15) years
but below eighteen (18) years of age shall likewise be
exempt from criminal responsibility and be subjected to
an intervention program, unless he/she has acted with
discernment, in which case, such child shall be subjected
to an appropriate proceedings.”
But the law itself provides that “the exemption from
criminal liability herein established does not include
exemption from civil liability, which shall be enforced in
accordance with existing laws.” Thus, it would seem
that the provisions on quasi-delict are not affected by the
passage of RA 9344.
37. In quasi-delicts , the contributory negligence of
the plaintiff shall reduce the damages that he may re-
cover (PCIB vs. Court of Appeals, et al., G.R. No. 121413,
January 29, 2001). The determination of the mitigation of
the defendant’s liability varies depending on the circum-
stances of each case. The Court had sustained a mitiga-
tion of 50% in Rakes v. AG & P; 20% in Phoenix Con-
struction, Inc. v. Intermediate Appellate Court; and LBC
Air Cargo, Inc. v. Court of Appeals; and 40% in Bank of
CHAPTER 5 91
ENFORCEMENT OF LIABILITY
criminal case, may not be consolidated with the latter.

This second scenario is equally and logically addressed
by the reasoning behind the provision for the first situa-
tion (Cojuangco, Jr. vs. Court of Appeals, et al., G.R. No.
37404, November 18, 1991).
13. Even when the criminal action for the same
negligent act has already resulted in acquittal, the inde-
pendent civil action for quasi-delict may still be main-
tained. “In the criminal case for reckless imprudence
resulting in serious physical injuries . . ., the judgment
of acquittal does not operate to extinguish the civil li-
ability of the defendant based on the same incident. The
civil action is entirely independent of the criminal case
according to Articles 33 and 2177 of the Civil Code. There
can be no logical conclusion than this, for to subordinate
the civil action contemplated in the said articles to the
result of the criminal prosecution — whether it be con-
viction or acquittal — would render meaningless the
independent character of the civil action and the clear
injunction in Article 31, that his action may proceed in-
dependently of the criminal proceedings and regardless
of the result of the latter.” (Castillo vs. Court of Appeals, et
al. G.R. No. 48541, August 21, 1989 citing Azucena v.
Potenciano, L-14028, June 30, 1962, 5 SCRA 468). The only
exception is when “the extinction proceeds from a dec-
laration from a final judgment that the fact from which
the civil action might arise did not exist.’’
14. On the other hand, the negligent act may give
rise to a complaint founded on both culpa aquiliana and
culpa contractual. “As early as the case of Gutierrez vs.
Gutierrez, (56 Phil. 177 [1931]) and thereafter, it has been
consistently held that where the injury is due to the con-
current negligence of the drivers of the colliding vehicles,
the drivers and owners of the said vehicles shall be pri-
marily, directly and solidarily liable for damages and it
is immaterial that one action is based on quasi-delict and
the other on culpa contractual , as the solidarity of the
obligation is justified by the very nature thereof. (Art.
malism, as appears to be the fashion of the times, since

the non-observance thereof actually becomes the basis
of their vicarious liability under Article 2180 (Metro Ma-
nila Transit Corporation vs. Court of Appeals, et al., G.R. No.
104408, June 21, 1993).
Nature of 15. In these cases, the liability of the tortfeasors
liability is solidary. “While the provisions of law do not expressly
provide for solidary liability, the same can be inferred
from the wordings of the first paragraph of Article 2180
which states that the obligation imposed by Article 2176
is demandable not only for one’s own acts or omissions,
but also for those of persons for whom one is respon-
sible. Moreover, Article 2180 should be read with Article
2194 of the same Code, which categorically states that
the responsibility of two or more persons who are liable
for quasi-delict is solidary. In other words, the liability of
joint tortfeasors is solidary.” (Hernandez et al. vs. Dolor, et
al., G.R. No. 160286, July 30, 2004).
16. The universal doctrine is that each joint tort
feasor is not only individually liable for the tort in which
he participates, but is also jointly liable with his tort
feasors. It may be stated as a general rule that joint tort
feasors are all the persons who command, instigate, pro-
mote, encourage, advise, countenance, cooperate in, aid
or abet the commission of a tort, or who approve of it
after it is done, if done for their benefit. They are each
liable as principals, to the same extent and in the same
manner as if they had performed the wrongful act them-
selves. Joint tort feasors are jointly and severally liable
for the tort which they commit. The persons injured may
sue all of them or any number less than all. Each is liable
for the whole damages caused by all, and all together
are jointly liable for the whole damage. It is no defense
for one sued alone, that the others who participated in
the wrongful act are not joined with him as defendants;
nor is it any excuse for him that his participation in the
tort was insignificant as compared to that of the others.
The
CHAPTER 5 93
ENFORCEMENT OF LIABILITY
jointly and severally liable for the whole amount. A pay-

ment in full for the damage done, by one of the joint tort
feasors, of course satisfies any claim which might exist
against the others. There can be but one satisfaction. The
release of one of the joint tort feasors by agreement gen-
erally operates to discharge all. Of course the court dur-
ing trial may find that some of the alleged tort feasors
are liable and that others are not liable. The courts may
release some for lack of evidence while condemning oth-
ers of the alleged tort feasors. And this is true even
though they are charged jointly and severally (cf., Con-
struction Development Corporation of the Philippines vs.
Estrella, et al., G.R. No. 147791, September 8, 2006).
17. The insurer, however, is not to be held
solidarily liable with the insured. In Malayan Insurance
Co., Inc. vs. Court of Appeals, G.R. No. L-36413, September
26, 1988 , a case was filed against the insurance company
and against the insured Pantranco, the latter being owner
of the bus negligently driven by its employee. The Su-
preme Court reversed the finding of the trial court hold-
ing the insurance company solidarily liable with
Pantranco. It held: “while it is true that where the insur-
ance contract provides for indemnity against liability to
third persons, such third persons can directly sue the
insurer, however, the direct liability of the insurer under
indemnity contracts against third party liability does not
mean that the insurer can be held solidarily liable with
the insured and/or the other parties found at fault. The
liability of the insurer is based on contract; that of the
insured is based on tort. In the context of a solidary
obligation, insurer may be compelled to pay the entire
obligation of P29,013.00, notwithstanding the qualifica-
tion made by the trial court. But, how can the insurer be
obliged to pay the entire obligation when the amount
stated in its insurance policy for indemnity against third
party liability is only P20,000.00?’’
18. Actions for damages caused by the tortious
CHAPTER 6
STRICT LIABILITY TORTS
Definition and 1. Until the 19th century, a person whose ac-

rationale tions cause harm to another was in most situations held
responsible for that harm simply because he acted. In
other words, he was liable even without fault. However,
over the years, it was generally perceived that the impo-
sition of absolute liability for one’s acts without regard
to fault is out of accord with the general principles of
law. Thus, the concept of liability without fault, or strict
liability torts (also referred to as strict liability in torts) is
now generally limited to acts which, though lawful, are
so fraught with possibility of harm to others that the
law treats them as allowable only on the terms of insur-
ing the public against injury (74 AmJur 2d, at 631-632).
2. The rule of strict liability is said to be appli-
cable in situations in which social policy requires that
defendant make good the harm which results to others
from abnormal risks which are inherent in activities that
are not considered blameworthy because they are rea-
sonably incident to desirable industrial activity. The ba-
sis of liability in such cases is the intentional behavior in
exposing the community to the abnormal risk (Ibid.).
3. Under the doctrine of strict liability in tort,
the liability is “strict” in the sense that it is unnecessary
to prove the defendant’s negligence (63 AmJur 2d, at p.
723). Known also as liability without fault, this branch
of torts seeks to regulate those activities that are useful
and necessary but that create abnormally dangerous risks
to society.
CHAPTER 8 121
KINDRED TORTS
same is initiated by the department to whom the con-

sultant concerned belongs and filed with the Ethics Com-
mittee consisting of the department specialty heads. The
medical director/hospital administrator merely acts as
ex-officio member of said committee. Neither is there
any showing that it is DLSMC which pays any of its
consultants for medical services rendered by the latter
to their respective patients. Moreover, the contract be-
tween the consultant in respondent hospital and his pa-
tient is separate and distinct from the contract between
respondent hospital and said patient. The first has for
its object the rendition of medical services by the con-
sultant to the patient, while the second concerns the pro-
vision by the hospital of facilities and services by its
staff such as nurses and laboratory personnel necessary
for the proper treatment of the patient. Further, no evi-
dence was adduced to show that the injury suffered by
petitioner Erlinda was due to a failure on the part of
respondent DLSMC to provide for hospital facilities and
a nd
staff necessary for her treatment. For these reasons, the
finding of liability on the part of DLSMC for the injury
suffered by Erlinda was reversed.” (Ibid.).
14. As reg
regar
ards
ds spe
speci
cial
al or
or limi
limited
ted pr
prac
actit
tition
ioner
ers,
s, the
the Special or
rules and standards governing the duty and liability of limited
physicians and surgeons in the performance of profes- practitioners
sional services are applicable to practitioners of the kin-
dred branches of the healing art, such as chiropodists,
chiropractors, Christian science healers, dentists, practi-
tioners of naturopathy, nurses, optometrists and opti-
cians and operators of X-ray machines.
15. AsAsid
idee from
from pri
prima
mary
ry lia
liabi
bilit
lity
y of ph
phys
ysic
ician
ianss and
and
surgeons for their own negligent acts, the weight of au-
thorities in common law countries also hold them vi-
cariously liable for the acts of their assistants. This pro-
ceeds from the premise that a physician or surgeon must
exercise due care in selecting his assistants.
While courts in the United States are divided as to
surgeon. As stated in 61 Am Jur 2d, page 438 , “an increas-

increas-
ing number of courts, although not abandoning the so-
called ‘Captain of the Ship’ rule under which the sur-
geon is considered to be in command in the operating
room, have recognized that many acts performed by a
nurse in the operating room are such as do not require
medical skill and judgment, and do not necessitate con-
trol and supervision by surgeon.” Thus, for acts of nurses
nurs es
belonging to these categories and which are not consid-
ered “medical”, the nurse is considered to have acted as
servant of the hospital, and that the surgeon may not be
held liable for the nurse’s negligence therein.
Legal mal- 16. Le
16. Lega
gall malp
malpraract
ctic
icee is like
likewi
wise
se a rec
recog
ogni
nize
zedd
practice ground for civil liability. In STI Drivers Association, et al.
vs. Court of Appeals, et al., G.R. No. 143196, November 26,
2002, it was held that damages can be recovered as a
result of inaction of counsel. And in a case where the
lawyer was negligent and the negligence resulted in the
dismissal of the client’s civil action for damages, the Su-
preme Court ordered the lawyer to reimburse his client
with attorney’s fees and paid court appearances (Richards
vs. Asoy, G.R. No. AC No. 2655, July 9, 1987).
But lawyers, like doctors, are not liable for mere
error of judgment. “Mistakes of attorneys as a s to the com-
petency of a witness, the sufficiency, relevancy or irrel-
evancy of certain evidence, the proper defense or the
burden of proof, failure to introduce evidence, to sum-
mon witnesses, and to argue the case, unless they preju-
dice the client and prevent him from properly present-
ing his case, do not constitute gross incompetence or
negligence (Tesoro v. Court of Appeals, G.R. No. 36666,
December 19, 1973, 54 SCRA 296, 304 citing People v. Ner,
G.R. No. 25504, July 31, 1969, 28 SCRA 1151, Rivero v.
Santos et al., 98 Phil. 500 (1956), Isaac v. Mendoza, 89 Phil.
279 (1951); Montes v. CFI of Tayabas, 48 Phil. 640 (1926);
People v. Manzanilla, 43 Phil. 167 (1922); US v. Dungca, 27
Phil. 274 (1914); US v. Umali, 15 Phil. 33 (1910).
CHAPTER 8 123
KINDRED TORTS
interest in conflict with their duty as such directors or

trustees shall be liable jointly and severally for all dam-
ages resulting therefrom suffered by the corporation, itsi ts
stockholders or members and other persons.
18. An
18. Anot
othe
herr case
case sim
simil
ilar
arly
ly reg
regar
ardeded
d as tort
tort is
is nui-
nui- Nuisance
sance. In the United States, nuisance is considered a prop-
erty tort. But in the Philippines, nuisance is placed in
different concept from quasi-delict which is generally
founded on negligence. In negligence, the question gen-
erally asked is whether it was unreasonable for the de-
fendant to act as he did in view of the threatened danger
or harm to one in plaintiff’s position. InI n nuisance, on the
other hand, the question generally is whether the
defendant’s use of his property was unreasonable to
plaintiff, without regard to foreseeability of injury. Li-
ability for negligence is based on a want of proper care,
while, ordinarily, a person who creates or maintains a
nuisance is liable for the resulting injury to others re-
gardless of the degree of care or skill exercised to avoid
such injury.
injury. Also, the principles of negligence ordinarily
apply where the cause of action is for harm resulting
from one act which created an unreasonable risk of in-
jury; whereas the principles of nuisance ordinarily ap-
ply where the cause of action is for continuing harm
caused by continuing or recurrent acts which cause dis-
comfort or annoyance to plaintiff in the use of his prop-
erty (II Tolentino 432).
Nuisance is treated in Book II, Title VIII of the Civil
Code.
DAMAGES
CHAPTER 1
Damages, 1. In le
lega
gall con
conte
tem
mpl
plat
atio
ion
n, the
the ter
term
m “da
“dam
mag
ages
es””
defined is the sum of money which the law awards or imposes
as pecuniary compensation, recompense or satisfaction
for an injury done (25 CJS 613).
Distinguished 2. Alt
lthhou
ough
gh th
thee wor
words
ds “d
“dam
amag
ages
es,”
,” “d
“dam
amagage”
e”
from other and “injury” are sometimes used synonymously, there
concepts is a material distinction between damages and injury.
Injury is the illegal invasion of a legal right; damage is
the loss, hurt or harm which results from the injury; anda nd
damages are the recompense or compensation awarded
for the damage suffered. Thus, there can be damage with-
out injury in those instances in which the loss or harm
was not the result of a violation of a legal duty. In such
cases, the consequences must be borne by the injured
person alone, the law affords no remedy for damages
resulting from an act which does not amount to a legal
injury or wrong. These situations are often called dam-
num absque injuria. In other words, in order that a plain-
tiff may maintain an action for the injuries of which he
complains, he must establish that such injuries resulted
from a breach of duty which the defendant owed to the
plaintiff a concurrence of injury to the plaintiff and legal
responsibility by the person causing it. The underlying
basis for the award of tort damages is the premise that
an individual was injured in contemplation of law.law. Thus,
there must first be a breach of some duty and the impo-
sition of liability for that breach before damages may be
CHAPTER 1 125
proximate cause of the injury (BPI Express Card Corpora-

tion vs. Court of Appeals, G.R. No. 120639, September 25,
1998).
3. If damage results from a person’s exercising
his legal rights, it is damnum absque injuria1 (Auyong Hian
vs. CTA, 59 SCRA 110).
4. The fundamental principle or theory on which Rationale
an award of damages is based is just compensation. It is
indemnity or reparation for the loss or injury sustained
by the injured party so that he may be made whole and
restored as nearly as possible to the position or condi-
tion he was in prior to the injury (25 CJS 626).
5. Damages to property or person are either gen- General and
eral or special. General damages are such as naturally special
and necessarily result from the wrong. They are such as damages
might accrue to any person similarly situated. Special
damages are such as do in fact accrue to the particular
individual by reason of the particular circumstances of
the case. Special damages are such as have proximately
resulted but do not always immediately result from the
breach and will not therefore be implied by law (cf., 25
CJS 620).
6. The difference becomes significant in the area
of pleading. General damages need not be specially
pleaded and may be embraced in the general plea for
“such other relief as may be deemed just and equitable
under the premises.” But special damages must be spe-
cifically prayed for. “If any special damage has also been
suffered, it should be set out on the pleadings” (Jimenez
vs. Reyes, G.R. No. 8227, March 9, 1914).
7. In an action for breach of contract of carriage
where by reason thereof, the passengers died, damages
for loss of earning capacity, separately from the indem-
nities by reason of death, may be considered included in
the prayer for “actual damages” and for other “just and
equitable reliefs” (Bulante vs. Liante, et al., G.R. No.

L-21583 & L-21591-92, May 20, 1968).
8. In the Philippines, damages may be: (1) Ac-
tual or compensatory; (2) Moral; (3) Nominal; (4) Tem-
perate or moderate; (5) Liquidated; or (6) Exemplary or
corrective (Art. 2197, Civil Code).
127
CHAPTER 2
ACTUAL DAMAGES
1. Actual and compensatory damages are those Actual

recoverable because of pecuniary loss — in business, damages
trade, property, profession, job or occupation (Albenson defined
Enterprises Corp. et al. vs. Court of Appeals, et al., G.R. No.
88694, January 11, 1993).
Under both the Spanish Civil Code and American
law of damages, actual damages for a negligent act or
omission are confined to those which “were foreseen or
might have been foreseen,” or those which were “the
natural and probable consequences” or “the direct and
immediate consequences” of the act or omission. Actual
damages, under the American system, include pecuni-
ary recompense for pain and suffering, injured feelings,
and the like. Actual damages in the Philippines do not
extend to such incidents. Aside from this exception, ac-
tual damages, in this jurisdiction, in the sense that they
mean just compensation for the loss suffered, are practi-
cally synonymous with actual damages under the Ameri-
can system (Algarra vs. Sandejas, G.R. No. 8385, March 24,
1914).
2. Except as provided by law or by stipulation,
one is entitled to an adequate compensation only for
such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or
compensatory damages (Art. 2199, NCC). Both “actual”
damages and “consequential” damages are dealt with
in the Civil Code under the same Chapter 2 of Title XVIII
and the two terms are used as equivalent of one another
(M.D. Transit & Taxi Co., Inc. vs. Court of Appeals, et al.,
CHAPTER 2 137
ACTUAL DAMAGES
the rate of interest, as well as the accrual thereof, is im-

posed, as follows:
1. When the obligation is breached, and it
consists in the payment of a sum of money, i.e., a
loan or forbearance of money, the interest due
should be that which may have been stipulated in
writing. Furthermore, the interest due shall itself
earn legal interest from the time it is judicially de-
manded. In the absence of stipulation, the rate of
interest shall be 12% per annum to be computed
from default, i.e., from judicial or extrajudicial de-
mand under and subject to the provisions of Ar-
ticle 1169 of the Civil Code.
2. When an obligation, not constituting a
loan or forbearance of money, is breached, an in-
terest on the amount of damages awarded may be
imposed at the discretion of the court at the rate of
6% per annum. No interest, however, shall be ad-
judged on unliquidated claims or damages except
when or until the demand can be established with
reasonable certainty. Accordingly, where the de-
mand is established with reasonable certainty, the
interest shall begin to run from the time the claim
is made judicially or extrajudicially (Art. 1169, Civil
Code) but when such certainty cannot be so rea-
sonably established at the time the demand is made,
the interest shall begin to run only from the date
the judgment of the court is made (at which time
the quantification of damages may be deemed to
have been reasonably ascertained). The actual base
for the computation of legal interest shall, in any
case, be on the amount finally adjudged.
3. When the judgment of the court award-
ing a sum of money becomes final and executory,
the rate of legal interest, whether the case falls un-
der paragraph 1 or paragraph 2, above, shall be
12% per annum from such finality until its satis-
faction, this interim period being deemed to be by
that the rates under the Usury Law (amended by P.D.

116) are applicable only to interest by way of compensa-
tion for the use or forbearance of money, interest by way
of damages is governed by Article 2209 of the Civil Code.
30. Interest due shall earn legal interest from the
time it is judicially demanded, although the obligation
may be silent upon this point (Article 2212, NCC).
Attorney’s 31. In the absence of stipulation, attorney’s fees
fees and expenses of litigation, other than judicial costs, can-
not be recovered, except: (1) When exemplary damages
are awarded; (2) When the defendant’s act or omission
has compelled the plaintiff to litigate with third persons
or to incur expenses to protect his interest; (3) In crimi-
nal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or pro-
ceeding against the plaintiff; (5) Where the defendant
acted in gross and evident bad faith in refusing to sat-
isfy the plaintiff’s plainly valid, just and demandable
claim; (6) In actions for legal support; (7) In actions for
the recovery of wages of household helpers, laborers
and skilled workers; (8) In actions for indemnity under
workmen’s compensation and employer’s liability laws;
(9) In a separate civil action to recover civil liability aris-
ing from a crime; (10) When at least double judicial costs
are awarded; (11) In any other case where the court deems
it just and equitable that attorney’s fees and expenses of
litigation should be recovered (Article 2208, NCC).
32. The general rule is that attorney’s fees cannot
be recovered as part of damages because of the policy
that no premium should be placed on the right to liti-
gate. They are not to be awarded every time a party
wins a suit. The power of the court to award attorney’s
fees under Article 2208 of the Civil Code demands fac-
tual, legal and equitable justification. Even when a claim-
ant is compelled to litigate with third persons or to in-
cur expenses to protect his rights, still attorney’s fees
may not be awarded where there is no sufficient show-
ing of bad faith in the parties’ persistence of a case other
CHAPTER 2 139
ACTUAL DAMAGES
33. Where recoverable, attorney’s fees are also in

the nature of actual damages, which must be duly
proved. They are also subject to certain standards, to
wit: (1) they must be reasonable, that is to say, they must
have a bearing on the importance of the subject matter
in controversy; (2) the extent of the services rendered;
and (3) the professional standing of the lawyer. In all
cases, they must be addressed in a full-blown trial and
not on the bare word of the parties. And always, they
are subject to the moderating hand of the courts. (Lacson,
et al. vs. Reyes, et al., G.R. No. 86250, February 26, 1990).
34. Attorney’s fees as an item of damages pro-
vided for under Article 2208 of the Civil Code is an award
made in favor of the litigant, not of his counsel, and the
litigant, not his counsel, is the judgment creditor who
may enforce the judgment for attorney’s fees by execu-
tion (Quirante vs. Intermediate Appellate Court, G.R. No.
73886, January 31, 1989).
35. ‘[T]he reason for the award of attorney’s fees
must be stated in the text of the court’s decision, other-
wise, if it is stated only in the dispositive portion of the
decision, the same shall be disallowed on appeal.’
(Policarpio vs. Court of Appeals, et al., G.R. No. 94563, March
5, 1991). A cursory reading of the trial court’s decision
shows that the award of attorney’s fees was stated only
once — “As for attorney’s fees, the court finds that the
amount of P20,000.00 including litigation expenses are
reasonable” — just below the dispositive portion of the
decision which reads: “WHEREFORE judgment is hereby
rendered ordering the defendants jointly and severally
liable to pay the plaintiff the total sum of TWO HUN-
DRED THIRTEEN THOUSAND ONE HUNDRED
FORTY EIGHT PESOS (P213,148.00) by way of damages
and to pay the costs of this suit.” The trial court failed to
justify the payment of attorney’s fees by RCPI, there-
fore, the award of attorney’s fees as part of its liability
should be disallowed and deleted (RCPI et al. vs.
Rodriguez, G.R. No. 83768, February 28, 1990).
tion expenses. They must be clearly explained and justi-

fied by the trial court in the body of its decision for the
general rule is that attorney’s fees and expenses of liti-
gation cannot be recovered in the absence of stipulation
(Sps. Samatra vs. De Parinas, G.R. No. 142958, April 24,
2002). The award of attorney’s fee is
i s the exception rather
than the general rule. As such, it is necessary for the
court to make findings of facts and law
l aw that would bring
the case within the exception and justify the grant of
such award (Citibank, N.A. vs. Sps. Cabamongan, et al.,
G.R. No. 146918, May 2, 2006).
37. ReReaso
asonab
nable
le att
attorn
orney
ey’s
’s fee
feess cons
constit
titute
ute a pro
proper
per
element of damages in an action based upon wrongful
attachment. ‘. . . the more generally prevailing view is
that one against whom an attachment has been wrong-
ful sued out is entitled to recover reasonable counsel
fees incurred or expended in defending against such at-
tachment’ (7 C.J.S., 372, cited in Francisco, supra , p. 170).
And ‘in cases mentioned in Article 2208 (Civil Code)
attorney’s fees constitute a part of actual damages’ (PCIB
vs. Intermediate Appellate Court, G.R. No. 73610, April 19,
1991 citing Fores vs. Miranda, L-12103, March 4, 1959).
In all cases, the attorney’s fees and expenses of liti-
gation must be reasonable (Art. 2208, NCC, last par.).
38. Ar
38. Artic
ticle
le III
III of
of the
the La
Labo
borr Code
Code an
and
d Rule
Rule VI
VIII
II,,
Sec. II, Book III of the Omnibus Rules Implementing the
Labor Code, provide that “[i] n cases of unlawful with-
holding of wages the culpable party may be assessed
attorney’s fees equivalent to ten percent of the amount
of wages recovered.’
recovered.’’’
Subrogatory 39. If the
39. the plai
plaint
ntif
iff’s
f’s prop
proper
erty
ty has
has bee
been
n insur
insured
ed,,
right of and he has ‘received indemnity from the insurance com-
insurer pany for the injury or loss arising out of the wrong or
breach of contract complained of, the insurance com-
pany shall be subrogated to the rights of the insured
against the wrongdoer or the person who has violated
the contract. If the amount paid by the insurance com-
141
CHAPTER 3
MORAL DAMAGES
1. Mora
Mo rall dam
damagages
es in
incl
clud
udee phy
physi siccal su
sufffe
feri
ring
ng,, Nature and
mental anguish, fright,
fri ght, serious anxiety
an xiety,, besmirched repu- concept
tation, wounded feelings, moral shock, social humilia-
tion, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they
are the proximate result of the defendant’s wrongful act
or omission (Art. 2217, NCC).
2. Mora
Mo rall dam
damagages
es ar
aree awa
awarrde
dedd to
to com
compepennsa
sate
te
one for manifold injuries such as physical
phys ical suffering, men-
tal anguish, serious, anxiety, besmirched reputation,
wounded feelings and social humiliation. These dam-
ages must be understood to be in the concept of grants,
not punitive or corrective in nature, calculated to com-
pensate the claimant for the injury suffered (del Mundo
vs. Court of Appeals, et al., G.R. No. 104576, January 20,
1995).
3. In th
thee ca
case
se of mo
mora
rall da
dama
mage
ges,
s, rec
ecov
over
ery
y is
more an exception rather than the rule. Moral damages
are not punitive in nature but are designed to compen-
sate and alleviate the physical suffering, mental anguish,
fright, serious anxiety
anxiety,, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar
harm unjustly caused to a person. In order that an award
of moral damages can be aptly justified, the claimant
must be able to satisfactorily prove that he has suffered
such damages and that the injury causing it has sprung
from any of the cases listed in Articles 2219 and 2220 of
the Civil Code. Then, too, the damages must be shown
to be the proximate result of a wrongful act or omission.
fine, an award of moral damages would require, firstly,

evidence of besmirched reputation or physical, mental
or psychological suffering sustained
sustain ed by the claimant; sec-
ondly, a culpable act or omission factually established;
thirdly, proof that the wrongful act or omission of the
defendant is the proximate cause of the damages sus-
tained by the claimant; and fourthly, that the case is predi-
cated on any of the instances expressed or envisioned
by Article 2219 and Article 2220 of the Civil Code (PT &
T vs. Court of Appeals, G.R. No. 139268, September 3, 2002).
4. Mora
Mo rall dam
damag
ages
es ar
aree awa
awarrde
ded
d to
to ena
enabl
blee the
the in
in--
jured party to obtain means, diversions or amusements
that will serve to alleviate the moral suffering he/she
has undergone, by reason of the defendant’s culpable
action (Radio Communications vs. Rodriguez, supra). Its
award is aimed at restoration, as much as possible, of
the spiritual status quo ante (Makabali vs. Court of Appeals,
157 SCRA 253, 260, January 22, 1988).
5. Alth
Al thou
ough
gh in
inca
capa
pabl
blee of pe
pecu
cuni
niar
ary
y es
esti
tima
mati
tion
on,,
the amount must somehow be proportional to and in
approximation of the suffering inflicted. Moral damages
are not intended to impose a penalty to the wrongdoer,
neither to enrich the claimant at the expense of the de-
fendant. There is no hard-and-fast rule in determining
what would be a fair and reasonable amount of moral
damages, since each case must be governed by its own
peculiar facts. Trial courts are given discretion in deter-
mining the amount, with the limitation that it should
not be palpably and scandalously excessive (Lamis vs.
Ong, G.R. No. 148923, August 11, 2005).
Requirements 6. Thee rul
Th rulee is
is set
settl
tled
ed th
that
at mor
oral
al da
dam
mag
ages
es can
an--
for the grant not be awarded in the absence of a wrongful act or omis-
of moral sion or fraud or bad faith (R & B Surety & Insurance Co.,
damages
v. Intermediate Appellate Court, 129 SCRA 736; and Siasat
v. Intermediate Appellate Court, 139 SCRA 238).
7. In or
orde
derr tha
thatt mo
mora
rall dam
damag
ages
es ma
may
y be aw
awar
arde
ded,
d,
there must be
CHAPTER 3 143
MORAL DAMAGES
ages, though incapable of pecuniary estimation, are in

the category of an award designed to compensate the
claimant for actual injury suffered and not to impose a
penalty on the wrongdoer (Kierulf, et al. vs. Court of Ap-
peals, et al., G.R. No. 99301, March
March 13, 1997).
8. Thee exc
Th excep
epti
tion
on is in th
thee cas
casee of
of rap
rape.
e. “M
“Mor
oral
al
damages may be awarded to the rape victim, in such
amount as the Court deems just, without the need for
pleading or proof of the basis thereof. The conventional
requirement of allegata et probata in civil procedure and
for essentially civil cases was dispensed with in crimi-
nal prosecutions for rape with the civil aspect included
therein since no appropriate pleadings are filed wherein
such allegations can be made.” (People vs. Degala, G.R.
No. 129292-93, June 20, 2001). Also, the unlawful killing
of a person, which may either be murder or homicide,
entitles the heirs of the deceased to moral damages with-
out need of independent proof other than the fact of
death of the victim (People vs. Hate, G.R. No. 145712, Sep-
tember 24, 2002).
9. Note
No te th
that
at a rap
rapee vic
victi
tim
m is
is ent
entit
itle
led
d to
to bot
both
h civ
civil
il
indemnity and moral damages. Said civil indemnity is
mandatory upon the finding of the fact of rape; it is
distinct from and should not be denominated as moral
damages which are based on different jural foundations
and assessed by the court in the exercise of sound dis-
cretion (People vs. Gementiza, supra; People vs. Caballes, et
al., G.R. Nos. 102723-24, June 19, 1997).
10. Wh
While
ile pr
proo
ooff is
is nec
neces
essa
sary
ry,, pro
proof
of of actual loss
is not. While actual damages cannot be awarded with-
out proof of actual loss, “[m]oral damages may be
awarded even without proof of pecuniary loss, inasmuch
as the determination of the amount is discretionary on
the court. Though incapable of pecuniary estimation,
moral damages are in the nature of an award to com-
pensate the claimant for actual injury suffered but which
for some reason can not be proven.” (Guilatco vs. City of
that can not be shown with certainty, unlike actual dam-

ages, the plaintiff must ascertain, in his estimation, the
sums he wants, and the sums required to determine the
amount of docket and other fees (Gregorio, et al. vs. Ange-
les, et al., G.R. No. 85847, December 21, 1989).
11. There is no hard and fast rule in the determi-
nation of what would be a fair amount of moral dam-
ages, since each case must be governed by its own pecu-
liar circumstances (Filinvest Credit Corporation vs. IAC,
166 SCRA 155).
12. In the adjudication of moral damages, the sen-
timental value of property, real or personal, may be con-
sidered (Art. 2218, NCC).
Instances 13. Moral damages may be recovered in the fol-
where moral lowing and analogous cases: (1) A criminal offense re-
damages may sulting in physical injuries; (2) Quasi-delicts causing physi-
be recovered
cal injuries; (3) Seduction, abduction, rape, or other las-
civious acts; (4) Adultery or concubinage; (5) Illegal or
arbitrary detention or arrest; (6) Illegal search; (7) Libel,
slander or any other form of defamation; (8) Malicious
prosecution; (9) Acts mentioned in Article 309; (10) Acts
and actions referred to in Articles 21, 26, 27, 28, 29, 30,
32, 34, and 35 (Art. 2219, NCC).
Seduction 14. The “seduction” contemplated in Article 2219
of the New Civil Code as one of the cases where moral
damages may be recovered, is the crime punished as
such in Articles 337 and 338 of the Revised Penal Code.
Where a woman, who was an insurance agent and former
high school teacher, around 36 years of age and approxi-
mately 10 years older than the man, “overwhelmed by
her love” for a man approximately 10 years younger
than her, had intimate relations with him, because she
“wanted to bind” him “by having a fruit of their en-
gagement even before they had the benefit of clergy,” it
cannot be said that he is morally guilty of seduction
(Hermosisima vs. Court of Appeals, et al., G.R. No. L-14628,
September 30, 1960)
CHAPTER 3 145
MORAL DAMAGES
recovery of moral damages unless the quasi-delict resulted

in physical injury (Quezon City Gov’t., et al. vs. Dacara,
G.R. No. 150304, June 15, 2005).
16. Recent case law fixes the amount of moral Rape
damages in crime of rape to P75,000.00, in addition to
civil indemnity in like amount (People vs. Gregorio Corpuz
Y Espiritu, G.R. No. 168101, February 13, 2006, En Banc).
17. The parents of the female seduced, abducted,
raped, or abused may also recover moral damages (Art.
2219, NCC).
18. As for moral damages in crimes of defama- Defamation
tion, the Supreme Court ratiocinated in this wise: “Ev-
ery man has a right to build, keep and be favored with a
good name. This right is protected by law with the rec-
ognition of slander and libel as actionable wrongs,
whether as criminal offenses or tortious conduct.”
(Brillante vs. Court of Appeals, et al., G.R. No. 118757 &
121571, October 19, 2004).
19. Defamation, which includes libel and slan-
der, means the offense of injuring a person’s character,
fame or reputation through false and malicious state-
ments. It is that which tends to injure reputation or to
diminish the esteem, respect, good will or confidence in
the plaintiff or to excite derogatory feelings or opinions
about the plaintiff. It is the publication of anything which
is injurious to the good name or reputation of another or
tends to bring him into disrepute. Defamation is an in-
vasion of a relational interest since it involves the opin-
ion which others in the community may have, or tend to
have, of the plaintiff. It must be stressed that words which
are merely insulting are not actionable as libel or slan-
der per se, and mere words of general abuse however
opprobrious, ill-natured, or vexatious, whether written
or spoken, do not constitute a basis for an action for
defamation in the absence of an allegation for special
damages. The fact that the language is offensive to the
20. Libel is defined in Article 353 of the Revised

Penal Code as “a public and malicious imputation of a
crime, or of a vice or defect, real or imaginary, or any act
or omission, condition, status, or circumstance tending
to cause the dishonor, discredit, or contempt of a natural
or juridical person, or to blacken the memory of one
who is dead.” For an imputation then to be libelous, the
following requisites must concur: (a) it must be defama-
tory; (b) it must be malicious; (c) it must be given pub-
licity; and (d) the victim must be identifiable.
21. Any of the imputations covered by Article
353 is defamatory and, under the general rule laid down
in Article 354, every defamatory imputation is presumed
to be malicious, even if it be true, if no good intention
and justifiable motive for making it is shown. There is
malice when the author of the imputation is prompted
by personal ill-will or spite and speaks not in response
to duty but merely to injure the reputation of the person
who claims to have been defamed. Truth then is not a
defense, unless it is shown that the matter charged as
libelous was made with good motives and for justifiable
ends.
22. Malice is not presumed and must, therefore,
be proved, under the following exceptions provided for
in Article, 354, viz.: “1. A private communication made
by any person to another in the performance of any le-
gal, moral or social duty; and 2. A fair and true report,
made in good faith, without any comments or remarks,
of any judicial, legislative or other official proceedings
which are not of confidential nature, or of any state-
ment, report or speech delivered in said proceedings, or
of any other act performed by public officers in the exer-
cise of their functions.” The privileged character of these
communications is not absolute, but merely qualified
since they could still be shown to be malicious by proof
of actual malice or malice in fact. The burden of proof in
this regard is on the plaintiff or the prosecution (del
Mundo vs. Court of Appeals, G.R. No. 104576, January 20,
CHAPTER 3 147
MORAL DAMAGES
regardless of the existence of malice in fact. In abso-

lutely privileged communications, the mala or bona fides
of the author is of no moment as the occasion provides
an absolute bar to the action. Examples of these are
speeches or debates made by Congressmen or Senators
in the Congress or in any of its committees. On the other
hand, in qualifiedly or conditionally privileged commu-
nications, the freedom from liability for an otherwise
defamatory utterance is conditioned on the absence of
express malice or malice in fact. The second kind of privi-
lege, in fine, renders the writer or author susceptible to
a suit or finding of libel provided the prosecution estab-
lished the presence of bad faith or malice in fact. To this
genre belongs “private communications” and “fair and
true report without any comments or remarks” falling
under and described as exceptions in Article 354 of the
Revised Penal Code (GMA Network, Inc. [formerly known
as “Republic Broadcasting System, Inc.”] and Rey Vidal vs.
Bustos, et al., G.R. No. 146848, October 17, 2006).
24. Note needs to be taken, however, that “the Doctrine of
enumeration under Art. 354 is not an exclusive list of fair comment
qualifiedly privileged communications since fair com-
mentaries on matters of public interest are likewise privi-
leged. Fair commentaries on matters of public interest
are privileged and constitute a valid defense in an ac-
tion for libel or slander. The doctrine of fair comment
means that while in general every discreditable imputa-
tion publicly made is deemed false, because every man
is presumed innocent until his guilt is judicially proved,
and every false imputation is deemed malicious, never-
theless, when the discreditable imputation is directed
against a public person in his public capacity, it is not
necessarily actionable. In order that such discreditable
imputation to a public official may be actionable, it must
either be a false allegation of fact or a comment based on
a false supposition. If the comment is an expression of
opinion, based on established facts, then it is immaterial
that the opinion happens to be mistaken, as long as it
might reasonably be inferred from the facts (Borjal vs.
CHAPTER 3 155
MORAL DAMAGES
such facts and circumstances as would excite the belief,

in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged
was guilty of the crime (or in this case, the wrongdoing)
for which he was prosecuted. Where there is probable
cause, the charge of malicious prosecution is then de-
feated, regardless of considerations of malice (cf., Ponce
vs. Legaspi, et al., G.R. No. 79184, May 6, 1992).
41. The elements of want of probable cause and
malice must simultaneously exist; otherwise, the pres-
ence of probable cause signifies, as a legal consequence,
the absence of malice. On these, there must be proof that
the prosecution was prompted by a sinister design to
vex and humiliate a person, and that it was initiated
deliberately knowing that the charge was false and base-
less to entitle the victim to damages (Martires vs. Cokieng,
et al., G.R. No. 150192, February 17, 2005).
42. Generally, malicious prosecution refers to un-
founded criminal actions and has been expanded to in-
clude unfounded civil suits just to vex and humiliate the
defendant despite the absence of a cause of action or
probable cause (Equitable Banking Corporation v. Interme-
diate Appellate Court, 133 SCRA 13B [1984]). The founda-
tion of an action for malicious prosecution is an original
proceeding, judicial in character. A disbarment proceed-
ing being judicial in character may therefore be the basis
for a subsequent action for malicious prosecution (Ponce
vs. Legaspi, et al., G.R. No. 79184, May 6, 1992).
43. “To maintain an action for damages based on
malicious prosecution, three elements must be present:
First, 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; second,
that in bringing the action, the prosecution acted with-
out probable cause; and third, the prosecutor was actu-
ated or impelled by legal malice” (Ferrer vs. Vergara, 52
O.G. 291).
45. To constitute malicious prosecution, there

must be proof that the prosecution was prompted by a
design to vex and humiliate a person and that it was
initiated deliberately by the defendant knowing that the
charges were false and groundless [Manila Gas Corpora-
tion v. CA, G.R. No. L-44190, October 30, 1980, 100 SCRA
602]. The filing of a suit, by itself, does not render a
person liable for malicious prosecution. Neither does the
mere dismissal by the fiscal of the criminal complaint a
ground for an award of damages for malicious prosecu-
tion if there is no competent evidence to show that the
complainant had acted in bad faith (Globe Mackay Cable
and Radio Corp., et al. vs. Court of Appeals, et al., G.R. No.
81262, August 25, 1989). Moreover, the adverse result of
an action does not per se make the action wrongful and
subject the action to damages, for the law could not have
meant to impose a penalty on the right to litigate. If
damages result from a person’s exercise of a right, it is
damnum absque injuria. (Saber vs. Court of Appeals, et al.,
G.R. No. 132981, August 31, 2004).
46. “It is the general rule, in the absence of any
statutory provision to the contrary, that advice of coun-
sel is a complete defense to an action for malicious pros-
ecution where it appears that the prosecution was insti-
tuted in reliance in good faith on such advice, given
after a full and fair statement of all the facts to the attor-
ney. This is true whether the advice was sought in re-
spect of a civil action or a criminal prosecution. More-
over, it is immaterial that the attorney’s advice was sound
or erroneous: if the defense is worth anything to a party
it must be available when through error of law, as well
as of fact, his action has failed; the lawyer’s error will
not deprive his client of the defense.” (34 Am. Jur. pp.
747-748). But in a case where “it appears that aside from
the case at bar, petitioner, with blind persistence, had
filed case after case and complaint after complaint against
Aurelia Altea and her common-law husband and not a
single case prospered, moral damages was validly
awarded (Hawpia vs. Court of Appeals, et al., G.R. No.
CHAPTER 3 157
MORAL DAMAGES
discretion in granting or refusing it is governed by rea-

son and justice. In order that a person may be made
liable to the payment of moral damages, the law requires
that his act be wrongful. The adverse result of an action
does not per se make the act wrongful and subject the
actor to the payment of moral damages. The law could
not have meant to impose a penalty on the right to liti-
gate; such right is so precious that moral damages may
not be charged on those who may exercise it errone-
ously. For these the law taxes costs’’ (Barreto vs. Arevalo,
et al. No. L-7748, Aug. 27, 1956, 52 O.G., No. 13, p. 5818).
48. As for the award of damages under Articles Article 19, 20
19, 20 and 21 of the Civil Code, it was held that “[t]he and 21
elements of abuse of right under Article 191 are the fol-
lowing: (1) the existence of a legal right or duty, (2) which
is exercised in bad faith, and (3) for the sole intent of
prejudicing or injuring another. Article 20 speaks of the
general sanction for all other provisions of law which
do not especially provide for their own sanction; while
Article 21 deals with acts contra bonus mores, and has
the following elements: (1) there is an act which is legal,
(2) but which is contrary to morals, good custom, public
order, or public policy, and (3) and it is done with intent
to injure. Verily then, malice or bad faith is at the core of
Articles 19, 20, and 21.” (Albenson Enterprises Corp. v.
Court of Appeals, 217 SCRA 16, 25 [1993]).
49. The report of the Code Commission states
thus — “. . . Fully sensible that there are countless gaps
in the statutes, which leave so many victims of moral
wrongs helpless, even though they have actually suf-
fered material and moral injury, the Commission has
deemed it necessary, in the interest of justice, to incorpo-
rate in the proposed Civil Code the following rule: ‘ART.
23. Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for

the damage.’’’ (Patricio vs. Leviste, G.R. No. 51832, April
26, 1989).
50. The act of hitting a person on the face is con-
trary to morals and good customs (Patricio vs. Leviste,
supra).
51. Indeed, bigamy is not one of those specifi-
cally mentioned in Article 2219 of the Civil Code in which
the offender may be ordered to pay moral damages to
the private complainant/offended party. Nevertheless,
the petitioner is liable to the private complainant for
moral damages under Article 2219 in relation to Articles
19, 20 and 21 of the Civil Code (Manuel vs. People, G.R.
No. 165842, November 29, 2005).
Breach of 52. Where a man’s promise to marry is in fact the
promise to proximate cause of the acceptance of his love by a woman
marry and his representation to fulfill that promise thereafter
becomes the proximate cause of the giving of herself
unto him in a sexual congress, and that he had, in real-
ity, no intention of marrying her and that the promise
was only a subtle scheme or deceptive device to entice
or inveigle her to accept him and to obtain her consent
to the sexual act, the act could justify the award of dam-
ages pursuant to Article 21 not because of such promise
to marry but because of the fraud and deceit behind it
and the willful injury to her honor and reputation which
followed thereafter. It is essential, however, that such
injury should have been committed in a manner con-
trary to morals, good customs or public policy (Baksh vs.
Court of Appeals, supra).
53. Where it was that there was “fraudulent and
deceptive protestations of love for and promise to marry
plaintiff that made her surrender her virtue and wom-
anhood to him and to live with him on the honest and
sincere belief that he would keep said promise, and it
was likewise these fraud and deception on appellant’s
part that made plaintiff’s parents agree to their
CHAPTER 3 163
MORAL DAMAGES
Pursuant to Art. 2208, attorney’s fees may be recovered

when, as in the instant case, exemplary damages are
awarded; (f) Compensation for Loss of Earning Capac-
ity. Art. 1764 of the Civil Code, in relation to Art. 2206
thereof, provides that in addition to the indemnity for
death arising from the breach of contract of carriage by
a common carrier, the “defendant shall be liable for the
loss of the earning capacity of the deceased, and the
indemnity shall be paid to the heirs of the latter.” (For-
tune Express vs. Court of Appeals, G.R. No. 119756, March
18, 1999).
64. Note, however, that a contractual breach may
come within the purview of Article 21 in relation to Ar-
ticle 2217 and Article 2219 of the Civil Code such as in
American Express International, Inc., vs. Intermediate
Appellate Court (167 SCRA 209) and Bank of Philippine
Islands vs. Intermediate Appellate Court (206 SCRA 408).
But “Article 21 of the Code, it should be observed, con-
templates a conscious act to cause harm. Thus, even if
we are to assume that the provision could properly re-
late to a breach of contract, its application can be war-
ranted only when the defendant’s disregard of his con-
tractual obligation is so deliberate as to approximate a
degree of misconduct certainly no less worse than fraud
or bad faith.” (FEBTC vs. Court of Appeals, et al., supra)
65. The term “analogous cases,” referred to in Analogous
Article 2219, following the ejusdem generis rule, must be cases
held similar to those expressly enumerated by the law.
(Expertravel & Tours, Court of Appeals, et al., G.R. No.
130030, June 25, 1999).
66. The writ of attachment based on a false affi-
davit was improperly or irregularly issued. An action to
recover damages from the attachment plaintiff, for the
wrongful issuance and levy of attachment is identical
with or analogous to the ordinary action for malicious
prosecution (Lazatin vs. Twaño, L-12736, July 31, 1961, 2
SCRA 842). In view thereof, moral damages may be re-
67. Moral damages is also recoverable in illegal

termination cases. Where “complainants’ dismissal was
carried out swiftly and surreptitiously to the detriment
and prejudice of complainants’ tenurial rights, such act
smacks of highhandedness and deserves no place in a
school that teaches respect and instills moral values and
human rights to the future citizens of this country.”
(Colegio del Sto Nino, et al. vs. NLRC, et al, G.R. No. 96301,
May 28, 1991). Moral damages are recoverable only where
the dismissal of the employee was attended by bad faith
or fraud, or constituted an act oppressive to labor, or
was done in a manner contrary to morals, good customs
or public policy (Spartan Security & Detective Agency vs.
NLRC, et al., G.R. No. 90693, September 3, 1992).
68. The crime of kidnapping and failure to re-
turn a minor under Article 270 of the Revised Penal Code
is clearly analogous to illegal and arbitrary detention or
arrest. The award of moral damages is justified (cf., People
vs. Bernardo, G.R. No. 144316, March 11, 2002).
69. In one case, the Supreme Court also sustained
the award of moral damages in favor of one who suf-
fered a permanent scar at her forehead and the loss of
her right eye which undoubtedly gave her mental an-
guish, wounded feelings and shock. The psychological
effect as regards the scar on her forehead and her false
eye must have devastated her considering that women
in general are fastidious on how they look. More impor-
tant, however, was the loss of vision of her right eye
which was severely injured as a result of the accident.
Since the accident, the plaintiff in the case (Linda
Navarette) had to contend with the loss of her eyesight
on her right eye which necessarily hampers her not only
physically but also professionally for the rest of her life.
Before the accident, Linda Navarette who is a home
economist by profession was doing well in her career. A
graduate of the University of the Philippines with the
degree of Home Economics, she is the Assistant-Vice
CHAPTER 3 165
MORAL DAMAGES
monthly salary of P7,000.00. She, however, had to give

up her consultancy job after the accident not only be-
cause of her prolonged absences but because of the physi-
cal handicap she suffered.
Nevertheless, when Linda claimed for moral dam-
ages for the alleged loss of her boyfriend by reason of
the accident, the Supreme Court denied the claim. The
High Court ruled: “No doubt, the loss of her boyfriend
after the accident added to her mental and emotional
sufferings and psychologically affected and disturbed
her. [But] there is no clear evidence on record to show
that her boyfriend left her after the accident due to her
physical injuries. He may have left her even if she did
not suffer the slightest injury. The reasons for the break-
up of a courtship are too many and too complicated
such that they should not form the basis of damages
arising from a vehicular accident. Moreover, granting
that her boyfriend left her due to her physical injuries,
we still find no legal basis for the award of moral dam-
ages in favor of Navarette because of the loss of a boy-
friend. Article 2719 of the New Civil Code quoted ear-
lier enumerates cases wherein moral damages may be
granted. Loss of a boyfriend as a result of physical inju-
ries suffered after an accident is not one of them. Nei-
ther can it be categorized as an analogous case” (Mayo
vs. People, G.R. No. 91201, December 5, 1991).
70. There, too, is a time-honored rule that an ac-
tion for breach of promise to marry has no standing in
the civil law, apart from the right to recover money or
property advanced by the plaintiff upon the faith of such
promise. (see Hermosisima vs. Court of Appeals, 109 Phil.
629 [1960]).
Generally, therefore, a breach of promise to marry
per se is not actionable. The exception is where the plain-
tiff has actually incurred expenses for the wedding and
the necessary incidents thereof. Also, where the acts of
one in forcibly abducting another and having carnal
constitutes acts contrary to morals and good customs.

These are grossly insensate and reprehensible transgres-
sions which indisputably warrant and abundantly jus-
tify the award of moral and exemplary damages, pursu-
ant to Article 21, in relation to paragraphs 3 and 10,
Article 2219, and Articles 2229 and 2234 of the Civil Code
(Bunag, Jr. vs. Court of Appeals, G.R. No. 101749, July 10,
1992).
71. Also, moral damages are not to be awarded
in actions for nullity of marriage on ground of psycho-
logical incapacity. In Buenaventura vs. Buenaventura, G.R.
No. 127358, March 31, 2005 , it was held that it is contra-
dictory to characterize acts as a product of psychologi-
cal incapacity, and hence beyond the control of the party
because of an innate inability, while at the same time
considering the same set of acts as willful. By declaring
a person as psychologically incapacitated, the possibil-
ity of awarding moral damages on the same set of facts
was negated. The award of moral damages should be
predicated, not on the mere act of entering into the mar-
riage, but on specific evidence that it was done deliber-
ately and with malice by a party who had knowledge of
his or her disability and yet willfully concealed the same.
For the same reason, since psychological incapacity
means that one is truly incognitive of the basic marital
covenants that one must assume and discharge as a con-
sequence of marriage, it removes the basis for the con-
tention that the one purposely deceived the other.
Moral dam- 72. In Mambulao Lumber Co. v. PNB , 130 Phil 366
ages in favor [1968] , it was ruled that a corporation may recover moral
of corpora- damages if it “has a good reputation that is debased,
tion, general resulting in social humiliation.”
rule
But in ABS-CBN Broadcasting Corporation vs. Court
of Appeals, et al., G.R. No. 128690, January 21, 1999, the
said pronouncement was debunked as a mere obiter dic-
tum. Citing Prime White Cement Corp. v. Intermediate Ap-
pellate Court, 220 SCRA 103, 113-114 [1993]; LBC Express
The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in
their company.
Guardians are liable for damages caused by the minors or inca-
pacitated persons who are under their authority and live in their com-
pany.
The owners and managers of an establishment or enterprise are
likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by their em-
ployees and household helpers acting within the scope of their assigned
tasks, even though the former are not engaged in any business or in-
dustry.
The State is responsible in like manner when it acts through a
special agent; but not when the damage has been caused by the official
to whom the task done properly pertains, in which case what is pro-
vided in Article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall
be liable for damages caused by their pupils and students or appren-
tices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the diligence of
a good father of a family to prevent damage. (1903a)
Art. 2181. Whoever pays for the damage caused by his depen-
dents or employees may recover from the latter what he has paid or
delivered in satisfaction of the claim. (1904)
Art. 2182. If the minor or insane person causing damage has no
parents or guardians, the minor or insane person shall be answerable
with his own property in an action against him where a guardian ad
litem shall be appointed. (n)
Art. 2183. The possessor of an animal or whoever may make use
of the same is responsible for the damage which it may cause, although
it may escape or be lost. This responsibility shall cease only in case the
damage should come from force majeure or from the fault of the person
APPENDIX A 195
CIVIL CODE PROVISIONS ON QUASI-DELICT
use of due diligence, prevented the misfortune. It is disputably pre-

sumed that a driver was negligent, if he had been found guilty of reck-
less driving or violating traffic regulations at least twice within the next
preceding two months.
If the owner was not in the motor vehicle, the provisions of Ar-
ticle 2180 are applicable. (n)
Art. 2185. Unless there is proof to the contrary, it is presumed that
a person driving a motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation. (n)
Art. 2186. Every owner of a motor vehicle shall file with the proper
government office a bond executed by a government-controlled corpo-
ration or office, to answer for damages to third persons. The amount of
the bond and other terms shall be fixed by the competent public offi-
cial. (n)
Art. 2187. Manufacturers and processors of foodstuffs, drinks, toi-
let articles and similar goods shall be liable for death or injuries caused
by any noxious or harmful substances used, although no contractual
relation exists between them and the consumers. (n)
Art. 2188. There is prima facie presumption of negligence on the
part of the defendant if the death or injury results from his possession
of dangerous weapons or substances, such as firearms and poison, ex-
cept when the possession or use thereof is indispensable in his occupa-
tion or business. (n)
Art. 2189. Provinces, cities and municipalities shall be liable for
damages for the death of, or injuries suffered by, any person by reason
of the defective condition of roads, streets, bridges, public buildings,
and other public works under their control or supervision. (n)
Art. 2190. The proprietor of a building or structure is responsible
for the damages resulting from its total or partial collapse, if it should
be due to the lack of necessary repairs. (1907)
Art. 2191. Proprietors shall also be responsible for damages caused:
(1) By the explosion of machinery which has not been taken
care of with due diligence, and the inflammation of explosive sub-
stances which have not been kept in a safe and adequate place;
(2) By excessive smoke, which may be harmful to persons or
(4) By emanations from tubes, canals, sewers or deposits of in-

fectious matter, constructed without precautions suitable to the place.
(1908)
Art. 2192. If damage referred to in the two preceding articles should
be the result of any defect in the construction mentioned in Article
1723, the third person suffering damages may proceed only against the
engineer or architect or contractor in accordance with said article, within
the period therein fixed. (1909a)
Art. 2193. The head of a family that lives in a building or a part
thereof, is responsible for damages caused by things thrown or falling
from the same. (1910)
Art. 2194. The responsibility of two or more persons who are li-
able for a quasi-delict is solidary. (n)
197
APPENDIX B
CIVIL CODE PROVISIONS ON DAMAGES
BOOK IV
TITLE XVIII — DAMAGES
Chapter 1
GENERAL PROVISIONS
Art. 2195. The provisions of this Title shall be respectively appli-

cable to all obligations mentioned in Article 1157.
Art. 2196. The rules under this Title are without prejudice to spe-
cial provisions on damages formulated elsewhere in this Code. Com-
pensation for workmen and other employees in case of death, injury or
illness is regulated by special laws. Rules governing damages laid down
in other laws shall be observed insofar as they are not in conflict with
this Code.
Art. 2197. Damages may be:
(1) Actual or compensatory;
(2) Moral;
(3) Nominal;
(4) Temperate or moderate;
(5) Liquidated; or
(6) Exemplary or corrective.
Art. 2198. The principles of the general law on damages are hereby
adopted insofar as they are not inconsistent with this Code.
Chapter 2
ACTUAL OR COMPENSATORY DAMAGES
However, since the Philippines is a civil law country, tort here is
viewed to be that rule of conduct which our legislature prescribes,
supplemented by the interpretations made by our Supreme Court in
appropriate cases presented before it.
Thus, our principal concept of torts is that which is ordained in
Article 2176 of our Civil Code as an act or omission, founded on
negligence, causing damage to another where there is no pre-existing
contractual obligations between parties. Tort, here, is essentially based
on negligent act or omission and cannot generally cover intentional acts,
in view of the limiting definition of Article 2176 of the Code. Unlike in
the United States, tort in the Philippines cannot cover any wrong; its
scope is limited to cases anchored on negligence. The only commonality
shared with the common law concept of torts is that our tort action is
based not on contractual breach and presupposes that there is no pre-
existing contracts between parties. Thus, it was once postulated that
common law torts is more comprehensive than ours.
However, in the course of our jurisprudential development, we
have seen how courts use with greater assertiveness our provisions of
civil law governing human relations. Intentional breaches of the rules
of good morals and customs were considered special torts. Hence, in
modern times, our Supreme Court was bold enough to declare that our
law on civil wrongs has become “much more supple and adaptable than
the Anglo-American law on torts” (Baksh vs. Court of Appeals, et al.,
G.R. No. 97336, February 19, 1993).
Our courts have also boldly entered the uncharted territories of
strict liability torts (also known strict liability in torts), rules on products
liability and such kindred torts as medical malpractice/negligence.
Alongside with this growth in our substantive law on torts are the
changes in the manner of litigating a tort action.
Fully cognizant of these changes, this book has endeavored to
present both these substantive and procedural developments. In the main,
then, this book aims to present torts in both the substantive and
procedural form so that the torts students will learn how the substance
and procedure relate to and influence each other. It endeavors to follow
and trace the steps taken by law practitioner when espousing or
defending a tort action. In discussing the general concept of torts
(Chapter 1), an extended discussion is made between three remedies
commonly involving negligence, to wit, culpa aquiliana , culpa criminal
and culpa contractual. Afterwhich, the book focused on elements of
vicariously or otherwise (Chapter 3), and the possible defenses that
these defendants may raise (Chapter 4). Then, in the event that these
defenses are unavailing, the next question tackled is how does one bring
a case for tort and what are the ways and devices that may be employed
in enforcing this right of action (Chapter 5). After presenting these
important principles and considerations in a pure tort action , such special
topics as strict liability torts (Chapter 6), special torts (Chapter 7) and
kindred torts of medical malpractice (Chapter 8) are then discussed.
As in common law countries, our “strict liability torts” refer to the
peculiar brand of torts that connote wrongs that law will remedy
despite the absence of negligence. The mere doing of the act that causes
harm creates a cause of action in view of the public policy involved in
the nature of the activity.
Special torts, on the other hand, are such because they are not
negligence-based. They are intentional acts that violate the fundamental
precepts of human relations.
The exposition on torts closes with a discussion on medical
malpractice which has gained prominence in the fairly-recent past. As
this is a branch of torts that is yet to be fully-developed, the author drew
heavily from the commentaries and jurisprudence of foreign scholars
and courts.
The book on damages is intended to be an extensive exposition
of the governing laws, principles and jurisprudence on damages. As
with the author’s work on torts, the inputs were drawn heavily from
the works of our Supreme Court from 1901 to present.
In cases where Philippine cases abound, the discussion was
subordinated to the exposition of established rules, principles and
jurisprudence as announced by our own courts, even as neither history
nor the foreign jurisprudence on the subject has been ignored. There is
a conscious effort to avoid putting in the author’s personal views,
realizing fully that in this country, only the words of the Supreme Court
have “binding effect” on the readers. References to the writings and
decisions of US Supreme Court and of foreign writers were made, but
only in few areas where there is dearth of Philippine jurisprudence.
Over-all, this is an attempt to present torts and damages in the words
of our very own Supreme Court. To make the book as useful yet as brief
as possible, recent cases have been preferred to older ones, except when
the older cases offer discussion on the principle and authorities that is
equally valuable.
of legal principles on quasi-delict and damages achieved by briefly
expounding the law as set forth in judicial decisions and referring only
to those cases which bear directly and helpfully upon the topics to
which they are cited. This book also differs in the manner and order or
sequence of presenting the established principles on quasi-delict and
damages based on the encounters with the students in the academe.
This, after all, is a law student’s book for learning what lawyers need
to know in practicing in the field of torts. As to form or presentation,
this book is written in numbered paragraph form, a personal preference.
Seeing the fulfillment of a dream and the partial completion of a
teacher’s mission, there are just some words that must not go unsaid,
and these are thank you. Thanks to my husband, our Ayen, and family.
Things happen only because I have them. Thanks, too, to my boss, Atty.
Bernardito A. Florido, for the genuine support and kind understanding.
Thanks to University of San Carlos for the constant inspiration. Thanks
to Fr. Ranhilio C. Aquino, Dean of San Beda Graduate School of Law,
for opening the door, and to Justice Jose C. Vitug, my book adviser, for
taking me here. To you both, great minds in extremely humble hearts,
my eternal gratitude. Most importantly, thanks to Him. Now that the
mist has been lifted, I see the humbling power of His daily Grace.
TABLE OF CONTENTS
OUTLINE Page
I. QUASI-DELICT
AUTHOR’S NOTE ...................................................................... iii
CHAPTER 1. INTRODUCTORY CONCEPTS ................... 1
CHAPTER 2. ELEMENTS OF QUASI-DELICT ................. 23
CHAPTER 3. NATURE OF LIABILITY .............................. 37
CHAPTER 4. DEFENSES IN AN ACTION FOR
QUASI-DELICT .............................................. 72
CHAPTER 5. ENFORCEMENT OF LIABILITY ................ 86
CHAPTER 6. STRICT LIABILITY TORTS .......................... 94
CHAPTER 7. SPECIAL TORTS ............................................ 102
CHAPTER 8. KINDRED TORTS .......................................... 110
II. DAMAGES
CHAPTER 1. INTRODUCTORY CONCEPTS ................... 124
CHAPTER 2. ACTUAL DAMAGES .................................... 127
CHAPTER 3. MORAL DAMAGES ...................................... 141
CHAPTER 4. NOMINAL DAMAGES ................................ 168
CHAPTER 5. TEMPERATE DAMAGES ............................. 172
CHAPTER 6. LIQUIDATED DAMAGES ........................... 176
CHAPTER 7. EXEMPLARY DAMAGES ............................ 178
CHAPTER 8. ASSESSMENT OF DAMAGES .................... 187
APPENDICES........................................................................................ 193
SUBJECT INDEX .................................................................................. 205
SUB-OUTLINE
AUTHOR’S NOTE
I. QUASI-DELICT
CHAPTER 1. INTRODUCTORY CONCEPTS
Definition of Quasi-delict ................................. 1
Culpa aquiliana distinguished from culpa
criminal ................................................... 5
Pre-existing contract generally bars
quasi-delict .............................................. 14
Exceptions ......................................................... 15
Culpa aquiliana distinguished from culpa
contractual ............................................... 16
Special Issues .................................................... 18
CHAPTER 2. ELEMENTS OF QUASI-DELICT
Definition of Negligence ................................... 23
Test to determine existence of negligence ......... 24
Degrees of Negligence ....................................... 25
Nature of the concept ........................................ 25
Factors to be considered .................................... 28
Definition of proximate cause ........................... 29
Concurrence of efficient causes ......................... 30
Burden of proof ................................................. 31
Presumptions of negligence .............................. 32
Definition of Res ipsa loquitur ......................... 33
CHAPTER 3. NATURE OF LIABILITY
Liability of tortfeasors ....................................... 37
Doctrine of Vicarious Liability ......................... 38
Rationale ....................................................... 38
Vicarious liability of parents ............................ 40
Vicarious liability of guardians ........................ 43
Vicarious liability of employers ........................ 43
Distinctions between employer’s vicarious
liability under Art. 2180 of NCC
and employer’s subsidiary liability
under Art. 100 of RPC ........................... 56
Vicarious liability of owner of vehicle .............. 60
Vicarious liability of State ................................ 60
Provinces, cities and municipalities ................. 62
Vicarious liability of teachers and owners
of schools of arts and trade ..................... 64
Liability of proprietor of building ..................... 71
CHAPTER 4. DEFENSES IN AN ACTION FOR
QUASI-DELICT
Plaintiff’s own negligence ................................ 72
Doctrine of Attractive Nuisance............. 74
Assumption of risk ............................................ 75
Doctrine of last clear chance ............................ 77
Emergency Rule ................................................ 79
Prescription ....................................................... 81
Diligence of good father of family .................... 81
Doctrine of contributory negligence................. 82
Contributory negligence distinguished from
doctrine of last clear chance .................... 83
CHAPTER 5. ENFORCEMENT OF LIABILITY

Available remedies............................................. 86
Rules governing requirement on
reservation of independent civil action ... 87
Nature of liability ............................................. 92
CHAPTER 6. STRICT LIABILITY TORTS

Definition and rationale ................................... 94
Liability of possessor of animals ....................... 94
Liability of manufacturers and processors
of foodstuffs, etc. ...................................... 95
Liability of head of family ................................. 100
CHAPTER 7. SPECIAL TORTS
Definition ....................................................... 102
Abuse of Right Principle .................................. 102
Cases under Art. 21 of NCC ............................ 103
“Emotional distress’’ tort action ....................... 106
Cases under Art. 26 of NCC ............................ 108
Interference with contractual relations ............ 109
CHAPTER 8. KINDRED TORTS
Medical Malpractice/Medical Negligence ........ 110
Elements of Medical Negligence ...................... 112
Error in Judgment rule ..................................... 115
Evidential rules ................................................. 115
Liability of hospitals.......................................... 118
Special or limited practitioners ........................ 121
Legal Malpractice.............................................. 122
Liability of directors and trustees of
corporation............................................... 122
II. DAMAGES
CHAPTER 1. INTRODUCTORY CONCEPTS
Definition of damages ....................................... 124
Distinctions with other concepts ...................... 124
Rationale ....................................................... 125
General and special damages ............................ 125
CHAPTER 2. ACTUAL DAMAGES
Definition ....................................................... 127
Requirements for the grant of actual
damages ................................................... 128
Components of actual damages ........................ 129
In contracts and quasi-contracts ............ 130
In quasi-delicts ........................................ 131
In crimes .................................................. 131
Interest ..................................................... 136
Attorney’s fees ......................................... 138
Subrogatory right of the insurer ...................... 140
CHAPTER 3. MORAL DAMAGES
Nature and concept ........................................... 141
Requirements for the grant of moral
damages ................................................... 142
Instances where moral damages may
be recovered ............................................. 144
In seduction ............................................. 144
In quasi-delict .......................................... 144
In rape ..................................................... 145
In defamation........................................... 145
Doctrine of fair comment .............. 147
Public Figure ................................. 149
Group libel ..................................... 150
Malicious prosecution ............................. 152
Art. 19, 20, 21 of NCC..................................... 157
Breach of promise to marry ..................... 158
Culpa contractual cases .................................... 159
Analogous cases ................................................ 163
General rule on moral damages in favor
of corporation .......................................... 166
Exception ....................................................... 167
CHAPTER 4. NOMINAL DAMAGES
Instances where nominal damages are
adjudicated............................................... 169
CHAPTER 5. TEMPERATE DAMAGES
Instances where temperate damages
are adjudicated......................................... 174
CHAPTER 6. LIQUIDATED DAMAGES
Definition of liquidated damages...................... 176
CHAPTER 7. EXEMPLARY DAMAGES
Requisites for the award of exemplary
damages ................................................... 178
Rationale for the award of exemplary
damages ................................................... 179
Instances where exemplary damages
are adjudicated......................................... 179
CHAPTER 8. ASSESSMENT AND MITIGATION OF
DAMAGES
Guiding principle.............................................. 187
In crimes ....................................................... 187
In quasi-delict ................................................... 190
In quasi-contracts ............................................. 190
Doctrine of avoidable consequences.................. 190
Judgment on the pleadings ............................... 190
Good faith not a defense in violation of
constitutional rights ................................ 191
APPENDICES
CIVIL CODE PROVISIONS ON QUASI-DELICT ................. 193
CIVIL CODE PROVISIONS ON DAMAGES ......................... 197
SUBJECT INDEX ......................................................................... 205

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1

6. Quasi-delict, known in Spanish legal treatises

tric Company, 16 Phil. 8; Vergara vs. Court of Appeals, G.R.

and individuality that is entirely apart and independent

(c) that delicts are not as broad as quasi-delicts, because

20. In other words, “the same act or omission

not apply to independent civil actions based on Articles

The first type of liability is governed by Articles

ployer primarily liable for tortious acts of its employees

Even in the earlier case of Vda de Severo et al. vs. Go,

caused by negligence or willful acts of their employees.

1. Going by defini tion of quasi-delict under Negligence

March, 1901; 2 March, 1904; 7 February, 1905; 16 June,

anything that indicates unusual or peculiar danger. Also,

“electricity is an agency, subtle and deadly.” The mea-

19. Mere intoxication is not negligence, nor does

an ordinary prudent and intelligent person, have rea-

36. In this jurisdiction, we have applied this doc-

from the doctrine cannot be availed of, or is overcome,

graph of Article 2180 of the Civil Code which provides

employer can prove there was no negligence on his part

with any other evidence, object or documentary, which

stantiated and self-serving testimonies were, without

already mentioned because he himself may be regarded

Revised Penal Code, for civil liability ex delicto; or

the same act or omission” or under both causes. Since

municipalities . . . liable for damages for the death of, or

remarked that municipal corporations are suable because

Where the school is academic rather than technical or

in the exercise of a legitimate student right, and even in

the protective and supervisory custody that the school

administrators and teachers shall be principally and

84. Also, the school may be held liable in its ca-

caused by his own negligence (Delsan Transport Lines,

G.R. No. 119602, October 6, 2000). Whether or not the

L-1719, January 23, 1907). The underlying precept of the

analogy, conclusively presumed to be incapable of neg-

criminal case, may not be consolidated with the latter.

malism, as appears to be the fashion of the times, since

jointly and severally liable for the whole amount. A pay-

Definition and 1. Until the 19th century, a person whose ac-

same is initiated by the department to whom the con-

surgeon. As stated in 61 Am Jur 2d, page 438 , “an increas-

interest in conflict with their duty as such directors or

proximate cause of the injury (BPI Express Card Corpora-

equitable reliefs” (Bulante vs. Liante, et al., G.R. No.

1. Actual and compensatory damages are those Actual

the rate of interest, as well as the accrual thereof, is im-

that the rates under the Usury Law (amended by P.D.

33. Where recoverable, attorney’s fees are also in

tion expenses. They must be clearly explained and justi-

fine, an award of moral damages would require, firstly,

ages, though incapable of pecuniary estimation, are in

that can not be shown with certainty, unlike actual dam-

recovery of moral damages unless the quasi-delict resulted

20. Libel is defined in Article 353 of the Revised

regardless of the existence of malice in fact. In abso-

such facts and circumstances as would excite the belief,