MIDTERM EXAMINATION

TORTS
BY: DR. GLENN R. LUANSING
INSTRUCTION: ANSWER THE FOLLOWING QUESTIONS WITH
LEGAL REFERENCE.

1. A collision occurred at an intersection involving a bicycle and

a taxicab. Both the bicycle rider (a businessman then doing
his morning exercise) and the taxi driver claimed that the other
was at fault. Based on the police report, the bicycle crossed
the intersection first but the taxicab, crossing at a fast clip from
the bicycle's left, could not brake on time and hit the bicycle's
rear wheel, toppling it and throwing the bicycle rider into the
sidewalk 5 meters away. The bicycle rider suffered a fractured
right knee, sustained when he fell on his right side on the
concrete side walk. He was hospitalized and was
subsequently operated on, rendering him immobile for 3
weeks and requiring physical rehabilitation for another 3
months. In his complaint for civil damages, the rider prayed for
the award Of P200,000 actual damages, P200,000 moral
damages, P200,000 exemplary damages, P100,000 nominal
damages and P50,000 attorney's fees. During trial, the
prosecutor adduced evidence to prove that the taxi driver had
committed reckless imprudence (Article 365, RPC). After trial
in the criminal case, the court acquitted the accused, but
awarded P50,000 civil indemnity. Feeling aggrieved, the
prosecutor appealed the case, contending that the trial court
erred in not awarding damages to the victim for P750,000.00,
and not P50,000.00.

A. Is there a valid appeal? 5 points

ANSWER: No. Under the rules, a motion for

reconsideration must be made prior to an appeal. Here,
there was no motion for reconsideration filed by the
aggrieved party prior to filing an appeal. Hence, the appeal
is not valid.
 b. Can the prosecutor elect to file a separate civil action
arising from quasi-delict as remedy after the accused was
acquitted in the criminal case?

ANSWER: Yes. Under the law, an action to file a quasi-

delict is substantially and distinctly recognized to be
different than that of a civil action deemed instituted in an
action for delict. Here, the remedy for quasi-delict may be
availed as it is separate and distinct from the case filed to
prove reckless imprudence under Art. 365 of the RPC.
Hence, a separate civil action arising from quasi-delict may
be filed.

2. A pedestrian, who was four (4) months pregnant, was hit by a

bus driver while crossing the street. Although the pedestrian
survived, the fetus inside her womb was aborted. Can the
pedestrian recover damages on behalf of the dead fetus? 5
points

ANSWER: No. Under the law, a fetus is not recognized to

have any legal personality unless it has an intra-uterine life of
at least 7 months and was delivered and alive for 24 hours.
Here, it is apparent that such fetus had no legal personality
wherein an action to recover damages on its behalf may be
sustained. Hence, the pedestrian cannot recover damages on
behalf of the dead fetus.

3. Spacetrip is a new ride inside Batibot Themepark. This ride

includes a steel wagon traversing at high-speed using a steel
railing and is equipped with a side escape system to allow
passengers to immediately alight should there be a
malfunction. This ride is widely used among foreign theme
parks and comes with Industry Standards Approval
(Independent Safety Assessor Inc.) as safe. Paula, who
wanted an adventure, decided to purchase a ticket for a ride.
At the back of the ticket were on fine prints containing this
statement: “Although Batibot Themepark has taken all
reasonable measures to provide a safe ride, I understand that
 Spacetrip is dangerous and waives all claims if necessary.”
Shortly after takeoff, an unexplainable malfunction happened
and the Spacetrip wagon was derailed. Paula was thrown
away and was critically injured, but survived.

a. Can Paula file for an action to recover damages against

Batibot Themepark? 5 points

ANSWER: Yes. Under the law, whoever by act or omission

whether by fault or negligence causes damages to another
there being no pre-existing contractual relation may claim
for damages. Here, it is clear that a themepark ride is
deemed safe for use. Regular maintenance of the rides
must be considered in the exercise of such industry. A
waiver of all claims in riding the dangerous ride is contrary
to law and is therefor null and void. The malfunction of the
ride does not exculpate Batibot Themepark from liability for
its failure to maintain the ride and prevent it from
derailment. Hence, Paula can file for an action to recover
damages against Batibot Themepark.

b. Can Paula file for an action to recover damages against

Industry Standards Approval? 5 points

ANSWER: Yes. Under the law, whoever by act or omission

whether by fault or negligence causes damages to another
there being no pre-existing contractual relation may claim
for damages. Here, Industry Standards Approval was
remiss as the ride failed to be a safe ride. Given its
independent nature, there being no contractual relation
between Paula and Independent Safety Assessor Inc.,
damages may be claimed for its negligence to ensure that
the ride is safe. Hence, Paula can file and action to recover
damages against Industry Standards Approval.

4. A driver of a bus owned by company Z ran over a boy who died

instantly. A criminal case for reckless imprudence resulting in
homicide was filed against the driver. He was convicted and was
 ordered to pay P2 Million in actual and moral damages to the
parents of the boy who was an honor student and had a bright
future. The accused timely filed an appeal for reversal of his
conviction. Without even trying to find out if the driver had assets or
means to pay the award of damages, the parents of the boy filed a
civil action against the bus company to make it directly liable for the
damages.

a) Will their action prosper? 5 points

ANSWER: No. The law demands that a claim for damages

may be made only upon finality of the case wherein such was
awarded. Here, the claim for damages arising from the delict
may not be had as the case was timely appealed by the driver
rendering the case pending finality. Hence, the action will not
prosper.

b) If the driver dies during the pendency of the appeal, can the
family of the boy still receive awards for damages? 5 points

ANSWER: Yes. The law says that when the accused dies
pending appeal the criminal liability is extinguished and the
civil liability remains. Here, as the case is pending finality, the
family of the boy can still receive awards for damages. Hence,
the family of the boy can still receive awards for damages.

5. While waiting for a PUJ to arrive, Lara positioned herself

under an old building being renovated by AA Construction
Company. There is warning sign posted on the wall “Keep
Out, Construction in Progress” (Hard Hat Area). The
building renovation is intended as future high school building
for the City of Pasay. A sudden magnitude 7.8 earthquake
jolted the earth, and hollow blocks from 5 th floor of said building
fell on Lara's head, resulting to her instant death.

Hence, the following claims for damages. (5 points each)

a. Can Lara's heirs file civil action for damages against City of
 Pasay? Can the City of Pasay contend immunity from suit or
payment for damages? Explain your basis.
ANSWER: No. Under the law, the government cannot be sued
unless it is acting in its private capacity. Here, it is clear that
the government was not acting in its private capacity in its
contracting of AA Construction Company. The building being for
public use, it did not have in any way a hand on the death of
Lara. Therefore, The City of Pasay cannot be sued and cannot
be asked to pay for damages.

b. Can Lara's heirs file civil action for damages against AA

Construction Company? Explain your basis.
ANSWER: No. Under the law, a fortuitous event extinguishes
liability provided that 1) the even is free from human will, 2)
the event was unforeseeable or unavoidable, 3) the debtor is
rendered unable to perform in a normal manner, and 4) the
debtor does not participate to aggravate the injury. Here, had
no means of anticipating an earthquake which will cause the
hollow blocks from falling off the 5 th floor the old building. It
made precautionary measures by presenting warning signs to
bystanders that the building was being constructed and a hard
hat to be worn as safety precaution. An earthquake of 7.8
magnitude was nowhere foreseeable by AA Construction; no act
by any human intervened; absent negligence on the part of AA
Construction; and provided that it did not aggravate the injury
caused to Lara, AA Construction Company is free from liability
due to a fortuitous event.

6. On May 1, 2020, Anjo (bus driver) was driving a

passenger bus at normal speed on a two-way road, when
a 6-year-old boy suddenly ran across the street to pick up
his ball. The bus immediately turned left to avoid injury to
the boy, but collided with a private car coming from
opposite side of the street. The driver of the car instantly
died. The parents of the boy were both at work during the
accident and a caretaker was hired, on an hourly basis, to
look after the child. As a trial court judge, resolve the
following claims:
 a. To whom will the bus operator be liable?

ANSWER: The bus operator will be liable for damages to the

heirs of the private car owner. Under the law, vicarious liability
attaches to those employers, engaged in an industry, whose
employees, who are in the exercise of their official duty, causes
damage to another through negligence. Here, it is apparent
that the bus driver was negligent in swerving to the other lane
resulting to the death of the private car owner. The operator is
then liable for the negligence of the driver who swerved to
another lane while driving which is in the course of the driver’s
official duty.

b. To whom will the bus driver be liable?

ANSWER: The bus driver will be liable to the heirs of the private
car and his employer (operator).

As to the heirs of private car owner, the driver must answer for
his death as if it were not for the negligent act of swerving the
private car owner would not have died. This is contemplated
under Art. 2176.

As to his employer, he must reimburse the employer if he

cannot pay as the employer carries vicarious liability wherein
full reimbursement may be made by the employer to his
employee. This is contemplated under the provision of Art.
2180.

c. What are the possible defenses of the driver and the

operator?
ANSWER: The defense of exercising extraordinary diligence in
the transportation of passengers as far as human foresight and
in the selection and supervision of employees.

The law requires extraordinary diligence in the exercise of a

common carrier in transporting passengers as far as human
foresight can see. Here, it is clear that the proximate cause of
the accident was the child running to the street to pick-up the
ball. This caused the swerving of the bus hitting and killing the
private car owner. The driver was driving in a normal speed and
exercising due car in its duty had to resort in a state of
necessity to avoid the child on the road.
The operator may provide evidence to the effect that it
exercised extraordinary diligence in the hiring and supervising
of its employees. With this, the operator may free itself from
liability. As this overturns the presumption of negligence in the
context of common carriers.