Torts and Damages I .

Concept/ Definition The term Tort is of Anglo-American law-common law which is broader in scope than the Spanish-Phil concept which is limited to negligence while the former includes international or criminal acts. Torts in Philippine law is the blending of common-law and civil law system. Quasi Delict refers to acts or omissions which cause damage to another, there being fault or negligence on the part of the defendant, who is obliged by law to pay for the damages done. Elements of Quasi Delict: 1. 2. 3. Damages suffered by the plaintiff Fault or negligence of the defendant Casual connection between the fault or negligence of the defendants act and the damages incurred by the plaintiff (Andamo vs IAC, 191 SCRA 426, 96)

2. As to Intennt to cause damage to another thru an act or omission: a. It is culpa absence such intent, the actors liability is civil governed by the Civil Code. b. It is dolo presence of such intent and the act or omission becomes crime and the actors civil liability is governed by the provisions of the Revised Penal Code. Distinctions Importance of knowing these distinctions lies in filing the proper cause of action against the tortfessor. The same act or omission which is faulty or negligent causing damage produces civil liability arising from a crime under the Revised Penal Code or create an action for quasi delict or culpa contractual under the Civil Code.

Art. 2177.

Art. 2176. Art. 2178.

Art. 2179.

Article 2176 of the Civil Code applies when theres no preexisting contractual relation between the parties. However, the supreme court held that even if there is contractual relation, there will still be quasi-delict since the act that break the contract may be also be tort, in cases of Air France vs Carrascaso, 18 SCRA 155; Singson vs BPI, 23 SCRA 1117, 63; and Fabre Jr vs CA, 259 SCRA 426 II. Distinctions 1. a. Fault signifies voluntary act or omission causing damages to the right of another giving rise to an obligation of the actor to repair such damage. Fault is of two (2) kinds: i. Substantive and independent fault in that there is no pre-existing relation. This is the one referred to Art. 2176 NCC and source of an obligation. It is also known as culpa extra contractual or culpa aquiliana covered by Art. 2176 NCC. ii. Fault as an incident in the performance of an obligation existing is known as contractual fault or culpa contractual governed by Art. 1170-73 of NCC. b. Negligence consist in the omission to do certain acts which result to the damage to another.

Illustrative Case: GSIS vs CA, 308 SCRA 559, 99 Facts: NFA National Food Authority owner of Chevrolet truck insured by GSIS- CMVLI. Victor Uy owner of Toyota Tamaraw used as PU insured by Mabuhay Ins and Guarrantee CMVLI. On May 9, 1979 at Tabon-Tabon, Butuan City, the two vehicles collided resulting to death and injuries to passengers of the Tamaraw and total wreck of the Tamaraw. 3 cases were filed. (1) Civil Case No. 2196 for quasidelict filed by UY vs NFA & GSIS recover damage to property. Won (2) Civil Case No. 2225 for culpa contractual filed by injured passenger Taer vs Victor Uy and Mabuhay. Won. (3) Civil Case No. 2256 for quasidelict NFA and driver Corbeta, GSIS vs Victor Uy for culpa contractual and Mabuhay.

(Note: no criminal action was filed although it may be done had any of the injured parties minded to. The action against the Insurers GSIS and Mabuhay are based on the insurance contract

of CMVLI whereby passengers injured have the right to sue directly the insurers) 3. Distinctions between Crimes and Culpa Aquiliana: Crimes: 1. Crimes affected the public interest. 2. Penal law punishes/ corrects the criminal act. 3. Only acts covered by Penal Law are punished (Barredo vs Garcia, 73 Phil 607; J. Bocobo, 1940 : Taxi c lied with Carretela) 4. Guilt proven beyond reasonable doubt. 5. Reservation to file separate civil action. No reservation, civil action is impliedly instituted in the criminal action. 6. Employers liability is subsidiary. Culpa Aquiliana: 1. Only private concern. 2. Repairs the damage by indemnification. 3. Covers all acts that are faulty or negligent. 4. Preponderance of evidence. 5. No reservation its independent from crime. 6. Employers liability is solidary (Fabre Jr. vs CA, 259 SCRA 426) Culpa Contractual (i) Pre-existing obligation between the parties (ii) Fault or negligence is incidental to the performance of the obligation (iii) Defense of having exercised diligence of a good father of a family is not available, just like in criminal action. Applied doctrine of Respondent Superior, or Master and Servant Rule. The result in the criminal case, whether acquittal, or conviction is irrelevant in the independent civil action under the Civil Code (JBL Reyes: Dionisio vs Alyendia, 102 Phil 443, 57, cited in Mckee vs IAC, 211 SCRA 536) unless acquittal is based on the courts declaration that the fact from which the civil action arose did not exist, hence the dismissal of criminal action carries with the extinction of the civil liability. (Andamo vs IAC, 191 SCRA 204, 90 J. Fernan) III. Doctrines/ Principles applied in Quasi-Delict or Tort cases availed of as defenses: 1. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. The failure to observe for the protection of the interest of another person, that degree of care, precaution, and vigilance which the circumstances justly demand,

whereby such person suffers injury. (Mckee vs IAC, 211 SCRA 517, 92, citing Black Law Dictionary and Judge Cooley: J. Davide Jr) 2. Emergency Rule one who suddenly finds himself in a place danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails not to adopt what subsequently and upon reflection may appear to be the better method, unless the emergency in which he finds himself is brought about by his own negligence. (Gan vs CA, 165 SCRA 378, 88, cited in McKee case) McKee vs IAC: Facts: Two boys suddenly darted before McKees car forcing McKee to swerve the car to avoid hitting the boys and in the process entered into the opposite lane and collided with the oncoming cargo truck in the opposite lane. Cases: to illustrate the exception expressed in unless the emergency in which he finds himself is brought about by his own negligence. Raynera vs Hicetas, 306 SCRA 102 Facts: At 2:00 A.M., Reynera was driving his motorcycle fast and bump a cargo truck he is tailing. Raynera died. Held: The proximate cause of the accident was his negligence of Raynera who was traveling behind the cargo truck. He had the responsibility of avoiding bumping the vehicle in front of him and who has control of the situation. The cargo truck rear was fully lighted. Proximate cause is that cause which, in the natural and continuous sequence, unbroken by any efficient intervening cause, produce the injury and without which the result would have not occurred. Austria vs CA, 327 SCRA 688 Facts: Austria driving her car very fast bumped a cargo truck improperly parked along the road. Held: Proximate cause of collision is Austrias driving recklessly such that he had no chance to avoid the collision which was of her own making. She had the last clear chance but failed to take steps to avoid hitting the cargo truck because she had no opportunity to do so. Persons Liable for Quasi Delict: Culpa Aquiliana: Tort Every person must, in the exercise with his rights and in the performance of his duty, act with justice, give everyone his due, and observe honesty and good faith (Art 19 NCC)Every person who, contrary to law, willfully or negligently causes damages to another, shall indemnify the latter for the same (Art 20 NCC) and any person who willfully causes loss or injury to

another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage (Art 21 NCC) Wassmer vs Velez, 12 SCRA 648 Contrary to Good Customs Facts: W and V set their wedding for Sept 4, 1954. Invitations were distributed to relatives and friends. Wedding dresses purchased, reception contracted etc. 2 days before the wedding V left for home in Mindanao and never heard again. Held: the mere breach of promise of marry is not an accionable wrong, but to formally set a wedding and go thru rites in preparing and publishing incurring expenses is palpably and unjustly contrary to good customs for which the defendant is answerable in damages under Art. 21 NCC.
Art. 2180.

Tortfeasor or Wrongdoer = Person acting with fault or negligence causing damage to another is obliged to pay for the damages done (Art 2176 NCC) Liability for ones act of fault or negligence Case: Dr Carillo va People, 229 SCRA 386 94 Anesthesiologist was convicted for negligence for the death of a child who died a day after operation for appendicitis. The physician did not make an intensive preparation such as administration of antibiotics, gave and overdose of anesthesia and arbritary administration of Nubian (pain killer) without examination of patients weight which caused a heart attact. Case: Batiquin vs CA, July 5, 96 - a surgeon left a piece of rubber in the womans uterus in caesarian operation

Person Vicariously Liable for Acts of Others (Art 2180) The basis of vicarious liability is responsibility of a person over other persons under their legal authority, control or influence. Violation or remission of duty arising from such relationship makes them liable for damages caused by other person under their care or charge.

1. Parent father, if dead or incapacitated, mother are responsible for damages caused by minor children living in their company (Art 2180 NCC) 2. Guardians are liable for damages caused by the minors or incapacitated person who are under their authority and live in their company. (ibid)
Art 221. Family Code provides that parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the act or omission or their unemancipated children living in their company and under parental authority subject to the appropriate defenses provided by law. The Basis of the civil liability which is primary-direct and solidary imposed by law is the necessary consequence of parental authority exercise over their children. This authority imposed a duty upon parents to support them, keep them company, educate and instruct them, and grand the right to correcting punish with moderation. The parents are relieved of this liability only upon proof that they have exercise the diligence of a good father of a family (Exconde vs Capuno, 101 Phil 843) to prevent damage. Case: Tamagro vs CA, 209 SCRA 519

Facts: a 10 year old boy shot and air gun a girl resulting to her death. The boy was acquitted in the criminal suit for having acted without discernment. However a civil suit was filed against the boys parent. Held: The Anglo-American Tort Principle of parental liability is a specie of Vicarious Liability, also known as Imputed Liability. This liability is made natural as logical consequences of the duties and responsibilities of parents exercising parental authority which includes controlling, disciplining and instructing their children. In this jurisdiction the parents liability is vested by law (NCC and FC) which assumes that when a minor or unemancipated child living with their parent, commits a tortuous act, the parents are presumed negligent in the performance of their duty to supervice the children under their custody. A presumption which muris tantum, not juris es de jure, rebuttable-overcome by proof having exercised and observed all the diligence of a good father of a family (diligentissimi patris familias). Note in this case the boy was adopted but it was the natural parent who were held liable as they the actual physical custody of the boy at the time of the shooting. The adoption was approved only after the shooting although the adoption proceeding was filed before the shooting and in between the time the adaptor was abroad. Case: Cuadra vs Monfort, 35 SCRA 160 Facts: Grade 6 pupil Maria C and Maria M were assigned by teacher to weed the grass in the school premises. M found a plastic headband which she aloud she found an earthworm and tossed it to C hitting the latter right eyes resulting to loss of said eye. Held: The underlying basis of the liability imposed by Art 2176 is the fault or negligence accompanying the act or omission there being no willfulness or intent to cause damage thereby and in Art 2180 providing vicarious liability of parent although primarily. It was not shown that the parent could have prevented the damage as their child was in school and they have the right to expect their child to be under the care and supervision of the teacher. Beside the act was an innocent prank and unusual among children at play and which no parent could have any special reason to anticipate much less guard against. Parent not held liable. Where the minor or insane person causing damage to others has no parent or guardian/ the minor or insane persons property shall answer the damage caused. (Art 2182)

by their pupils and students or apprentices remaining under custody (Art 2180 NCC)
Exconde vs Capuno, 201 Phil 843 Facts: 15 year old elementary student after attending Rizal Day Parade boarded a jeep on the way home. He took over the wheel and driving recklessly caused the vehicle to turn over resulting to death of two passengers. Held: Upon being found guilty of double homicide with reckless imprudence filed against him, a separate civil action was filed whereby the father was hold solidarily liable for damages under Art 1903 nor Art 2180 NCC. The school head was held no liable being academic school. Mercando vs CA, 108 Phil 414, 1960 Facts: A student of Lourdes Catholic School in QC during recess cut a classmate with razor blade. Parent of the injured student sued the culprit for damages. Held: Reiterated Exconda case school not liable as it was not an establishment of arts and trade (aside from the fact that it was not sued). Parent was held to be liable. Palisoc vs Brillantes. 41 SCRA 548, 1971 Facts: A 16 year old student of Manila Technical Institute was killed in a fist fight by a person who was not boarding in the school and of majority age. Held: The school is being non-academic (arts and trade), the head of the school and teacher in charge were solidarily liable with the assailant. Amadora vs CA 160 SCRA 315, 1988 J. Cruz Facts: It was summer of 1972 Alfredo Amadora about to graduate at the Colegio de San Jose-Recoletes was shot to death by his classmate Pablito Daffon. Alfredo went to the school to submit his Report in Physic. Held: Art 2180 NCC applies to all schools, academic or non-academic. Teachers are liable for acts of their student except where the school is technical in nature (arts and trade establishment) in which case the head thereof shall be answerable. There is really no substantial difference distinction between the academic and non-academic schools in so far as torts committed by their students are concerned. The same vigilance is expected from the teacher over the student under their control and supervision, whatever the nature of the school where he is teaching. x x x x The distinction no longer obtains at present. x x x

3. Teachers or Heads of school of arts and trade (non-academic) are liable for damages caused

The student is in the custody of the school authorities as long as he is under the control and influence of the school and within its premises, whether the semester has not ended, or has ended or has not yet begun. The term custody signifies that the student is within the control and influence of the school authorities. The teacher in charge is the one designated by the dean, principal, or other administrative superior to exercise supervision over the pupils or students in the specific classes or sections to which they are assigned. It is not necessary that at the time of the injury, the teacher is physically present and in a position to prevent it. Thus, for injuries caused by the student, the teacher and not the parent shall be held responsible if the tort was committed within the premises of the school at any time when its authority could be validly exercised over him. In any event, the school may be held to answer for the acts of its teacher or the head thereof under the general principle of respondent superior, but it may exculpate itself from liability by proof that it had exercised the diligence of a bonus paterfamilias. Such defense they had taken necessary precautions to prevent the injury complained of and thus be exonerated from liability imposed by Art 2180. Basis of teachers vicarious liability is, as such, they acting in Loco Parentis (in place of parents). However teachers are not expected to have the same measure of responsibility as that imposed on parent for their influence over the child is not equal in degree. x x x The parent can instill more lasting discipline more lasting disciple on the child than the teacher and so should be held to a greater accountability than the teacher or the head for the tort committed by the child. As the teacher was not shown to have been negligent nor the school remised in the discharged of their duties, they were exonerated of liability. (Note the court view on increasing students activism likely causing violence resulting to injuries, in or out of the school premises J. Guttierez, Jr concurringly said many student x x x view some teachers as part of the bourgeois and or reactionary group whose advice on behavior deportment and other non-academic matters is not only resented but actively rejected. It seems most unfair to hold teacher liable on a presumption juris tantum of negligence for acts of students even under circumstances where strictly speaking there could be no in loco parentis relationship. The provision of Art 2180 NCC involved in this case has outlived its purpose. The court cannot make law, it can only apply the law with its imperfections. However the court can suggest that such a law should be amended or repealed.

been caused by the official to whom the task is done properly pertains (i.e. function or duty) in which case Art 2176 is applied.
As a general rule, the state cannot be sued without its consent. (principle of immunity from suit) This consent is manifested in legislative acts enactment of laws making the state suable as in this specific provision of the Civil Code, in RA 7160 LGC of 1991 providing that LGU and their officials are not exempt from liability for death or injury to person or damage to property (Sec 24). The state the state may not be sued without its consent. (Sec 3 Art XVI 87 Constitution) This is the doctrine of immunity from suit or principle of non liability (enuciated in the 1910 case of Forbes vs Chuco Tiaco & Crossfield, 16 Phil 534) was originally founded upon an old maxim that The King can do no wrong prevailing during the medieval England when the King was generally accepted as the State himself. With the development of democratic thoughts and institution, the concept eventually lost is moral force, the natural person-king is no longer the state but merely its representative who may be removed by the people. i.e. thru impeachment. The modern basis of the principle is that immunity from suit is inherent in all sovereign states. The reason is based on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. (Kawananakoa vs Plyblank, 206 US 349 cited by Hector S. Deleon, 2002 Ed Textbook on the Phil Const) The state (Govt) may be sued only with its consent which may be given i. expressly thru duly enacted statutes such as the ff: a. CA NO. 327 amended by PD 14445 providing conditions under which the state may be sued b. Administrative Code of 1987 c. Civil Code Art 2180 state acting thru special agent d. Charters of public corp vesting them with power to sue and be sued, eg. RA 7610 LGC ii. Impliedly as in the ff cases: a. When the Govt sues to recover money from individual who has claim against it, the latter may set a counterclaim. b. When the Govt engages in commercial business or enters into a contract, it can be sued upon the theory that it has

4. The state is responsible when it acts thru a special agent but not when the damage has

descended to the level of private individual from which it can be implied that its has given its consent to be sued under the contract and thereby divested itself of its sovereign character and its immunity from suits. (National Airport Corp vs Teodoro, 91 Phil 203, Manila Hotel Employees Assn. Vs Manila Hotel, 73 Phil 347) The term State used in Art 2180 NCC refers to the Govt of the Republic of the Philippines defined in Sec 2, 1987 Revised Administrative Code as the Corporate Governmental entity thru which the functions of the govts are exercised throughout the Phils, which included the various arms thru which political authority is made effective in the Phils such as the autonomous regions and the local govt units (province, city, municipality and barangay). The term does not include agency or instrumentality or other entity which their enabling laws have invested with juridical personality separate and distinct from that of the Republic of the Philippines (Fontanilla vs Maliaman, 194 SCRA 495 J. Paras) The functions of govt is classified into (a) governmental or constituent involving exercise of sovereignty and is compulsory, (b) proprietary or ministrant which is optional (Fontanilla vs Maliaman) The state for the governmental function the state can not be sued without its consent. For the proprietary function of the govt may be sued without its consent which is presumed have been given in advance. The state may be sued only thru its Special Agent but not when the damage had been caused by the official to whom properly it pertained to do the act performed (Merritt Fontanilla case, 194 SCRA 503) Special Agents are of two kinds a. Public officials with a particular assigned tasks but is specially commissioned to do such task foreign to his usual assigned governmental function. b. Private person not a public official, commissioned to perform non-governmental function. A govt commissioning a private person for a special task is acting thru special agent within the meaning of Art 2180 NCC The state assumes the role of an ordinary employer and will be held liable for the special agents torts (Fontanilla vs Malianan, 89) Facts: Hugo Garcia is a regular employee of National Irrigation Administration (NIA) a govt agency created by its charter RA 3601 amended by PD 552 for the purpose of undertaking integrated irrigation project.

Garcia driving the agency official pick-up bumped a bicycle ridden by Fontanilla resulting to his death. The victims parent filed a civil action against NIA and its driver Garcia who was found guilty of driving recklessly. NIA was ordered to pay, NIA appealed raising the issue that as govt agency performing govt function is not liable as being a part of the state, cannot be sued. Held: the state or govt agency performing governmental function may be held liable for tort committed by its employees when it acts thru a special agent. While NIA is a govt agency performing governmental function, however it is suable because its charter provides that it may be sue or be sued, thus consent of the state for NIA to be sued has already given, so that the rule on immunity from suit normally extended to govt agencies performing governmental functions is no longer available to NIA. By waiving that immunity from suit in its charter, NIA open itself to suits. Thus NIA was held responsible for the negligent act of its employee Garcia who is not a special agent. (J. Padilla separate opinion in Fontanilla vs Maliaman Resolution in 1991, 194 SCRA 499) Palafox vs Ilocos Norte Prov, 102 Phil 1186 Facts: Provinces truck on its was to the river for gravel and sands to be used in the construction and repair of its road (a governmental function) runs over a pedestrian resulting to the latters death. Held: The province was not liable because its employee driver at the time of the accident was performing his regular duties and is not a special agent. Rosete vs The Auditor General, 81 Phil 453 Facts: A fire broke out in the Emergency Control Administration (a govt office) due to the negligence of its employee in igniting recklessly his cigarette lighter near a drum of gasoline in the offices warehouse resulting to destruction of buildings adjoining the warehouse. Victims sued the officers of the Emergency Control Admin. Held: As ECA or its officers were shown to have acted not as special agent of the govt in storing gasoline in the warehouse, the Govt is not responsible for the damages caused thru such negligence. Republic vs Palacio, 23 SCRA 899 Facts: The Irrigation Service Unit, an office/agency under the Dept of Public Works and Communication was sued for tort and the Sheriff of Manila garnished the deposit of the ISU in the PNB, Manila.

Held: The ISU being an office in the govt and its fund is a public fund. It is being shown that the ISU was guilty of tort, however the sate not its fund is not liable because the ISU was not a special agent. Under Art 2180 the state is liable only for tort caused by its special agent. GAA vs CA, 167 SCRA 28, 88 Facts: GAA charges fees for the use of the Airports terrace or viewing deck where one gets a better view of arriving and departing passengers at the airport. The deck had an elevated portion (4 inches) which caused a viewer to fall breaking his thigh bone. He sued CAA for hospital expenses. CAA raised the defense of being a govt agency subject of immunity from suit. Held: While CAA is a govt agency however it is performing a proprietary functions business and under its charter it is empowered to sue and be sued. Thus it cannot avail the immunity from suit accorded to govt agencies performing strictly governmental function. (Malong vs PNR, 138 SCRA 63 which ruled that PNR is not immune from suit as it does not exercise sovereignty but purely proprietary business function) NIA vs IAC, 214 SCRA 35, 92 Held: Damages caused by the officials of NIA for its negligence in the construction of the canal which caused damages to nearby land, NIA is liable under Art 2176 NCC as NIAs official are not special agent in performing their official assigned duties and functions. LGU are liable for damages for the death or injuries suffered by any person by reason of defective conditions of roads, streets, bridges, public building and other public works under their control or supervision. (Art 2189) LGUs and their official are not exempt from liability for death or injury to persons or damage to property. (Sec 24, RA 7160 LGC of 1991) Municipality of San Fernando, La Union vas Firme, 195 SCRA 692, 91 Facts: Municipals dump truck on way to the Naguilian River to get gravel and sands for the repair of roads (a governmental function) collided with a passenger jeep resulting the death of passenger of the latter vehicle. Civil action was filed against the Municipality. Held: Municipalities being agencies of the State, when performing governmental functions enjoy sovereignty and thus immune from suit unless it is shown that they are performing proprietary function. However, they may be held liable if it can be shown acting thru a special agent. The Municipalitys driver is

not a special agent and so the Municipal is not liable, only the driver. Palma vs Graciano, 99 Phil 92 Facts: A governor and a Mayor filed a criminal charge which was dismissed for being groundless. They were sued. Held: The prosecution of a crime is a governmental function, not a corporation action. In the discharged thereof, the Province or City or Municipality is not liable for tortuous acts of its officers. Only the public officers acting tortuously (beyond the scope of their authority) are personally liable because the mantle of immunity from suit accorded to their office is not available for their tortuous acts. Republic vs Sandoval, 20 SCRA 124, 1993 Facts: Jan 22, 1987 known as Black Saturday the Mendiola Massacre of Rallyist who were shot as they march toward Malacaang. Heirs of the dead rallyist sued the Republic and Military Officers and soldiers. Judge Sandoval dismiss their suit invoking States immunity from suit. Held: Instances when the suit against the state a. when the Republic is sued by name b. when the suit is against an unincorporated govt agency c. when the suit is against a govt officer but the ultimate liability will fall on the state and not on the officer d. when the govt perpetrated injustice on the citizen (De los Santos vs IAC, 223 SCRA 11) In this case, the state is not liable for the civil liability arising from criminal acts of the military for violating BP Blg 880 which prohibits unnecessary firing in dispensing public assembly. The doctrine of immunity from suit will not be applied to the military officers who have acted beyond the scope of their authority because in so doing they are deemed to ceased to be a public officers but a private person liable like any other private persons for doing wrongful acts. De los Santos vs IAC, 223 SCRA 11, 93 Facts: Min of Public works while carrying on its project of constructing roads and creeks took over the portion of privately owned land without or against the consent of the owner who sued. Immunity from suit was invoked.

Held: when a govt thru its agency takes away private property without going to legal process of expropriation and paying just compensation, a suit may be properly maintained against the govt. The civil action may be based under Art 32 NCC and the constitutional provisions on rights against privation of property without due process of law and without just compensation. The doctrine of immunity from suit cannot serve as an instrument for the perpetration of injustice on its citizens. (J. Romero) Resume on States liability for tort The state is liable fro the tortuous acts only of its special agent but not of its public officials in the performance of their assigned usual duties and functions who are liable under Art 2176 NCC and not Art 2180 NCC Rationale: there can be no legal rights as against the authority that grants such rights. This is known as doctrine of immunity from suit which is very essence of sovereignty. It is expressed in the constitution that the state cannot be sued without its consent (Sec 3, Art XVI). The states consent is manifested expressly in the form its legislative enactments of statues (Art 2180 NCC, Sec 24 LGC of 1991, Act No 3083 relating money claims arising from contract) and impliedly when the state enters into contract in its proprietary or private capacity, or when the sate itself sues, opens itself to counterclaim, or perpetrate injustice to its citizen.

bonus fater familias). The theory is deduced from the last par of Art 2180 NCC providing the responsibility shall cease upon proof of exercise of the diligence of a good father of a family to prevent the damage. The term Manager in Art 2180 is used in the sense of employer, not employee. Case: Phil Rabbit Bus Lines Inc vs Phil Am Forwarder, Mar 25, 1975 Facts: An action for damages was brought against Phil Am Forwarded and its Manager Balingit for negligent act of their driver. Balingit moved to dismiss the action against him for though he was manager, however, he was just an employee of the company. Held: Balingit is not liable because he was just a mere employee though designated as Manager. The relationship of employer-employee or masterservant must first be established to exist before the employer/master will be held liable. Case: Phil Shell Petroleum Co vs CA, 221 SCRA 389 Facts: Gas station proprietor was sued for selling adulterated gas with water. He settled amicably the suit and then Phil Shell for the negligence of Feliciano who was hired in undertaking hydro pressure test in the underground storage tank which was cracked causing water to seep into the tank. Held: Phil Shell is not liable because Feliciano was not its employee. It was shown that Phil Shell has no control over Feliciano who do business of his own, used his own tools and worked on his own time charging a fixed lump sum for every piece of work. Feliciano was an independent contractor and not an employee and thus he alone is liable. Case: Cuison vs Norton & Harisson Co, 55 Phil 18 Facts: Ora was employed by defendant company charged in directing and controlling transport business of the Co. On the day of the accident, one of the companys truck was leaded with logs which were not properly tied. The ties were loosened during the trip. They stopped to rearrange the ties but before they could do so a child passing beside the truck was hit by a log falling from the truck. Held: Ora beingan employee of the company, the latter is responsible for the negligence in the loading of logs which caused the death of the boy. Distinction of employers liability under Art 2180 NCC and Revised Penal Code. Civil Code

5. Employers: Master
a. Owner and Manager of establishment or enterprises are liable for damage caused by their employees in the service of employment or on the occasion of their functions. b. Employer of household helper though not engaged in any business or industry are liable for damages caused by helper acting within the scope of their assigned tasks. Basis of Liability is not Respondent Superior (AngloAmerican doctrine where the negligence of the employee is conclusively presumed to be the negligence of the employer) but on the relationship of PaterFamilias, (master-servant) a theory basing the liability of the master ultimately on his own negligence and not that of the servant as manifested in his negligence in the selection of their employee-servant (culpa eligiendo) or in the supervision over their employeeservants (culpa in vigilando). This negligence is prima facie presumption juris tantum- overcome or rebutted by proof that they have observed and exercised all the diligence of a good father of a family (diligantissimi

1. Direct and primary solidary, employer is sue even without suing the employee 2. Defense of exercise of diligence of a good father of the family to be relieve of liability 3. Employer is liable even if not engaged in business 4. Proof of negligence is by mere preponderance of evidence Revised Penal Code 1. Subsidiary arising after the employees guilt 2. Diligence of a good father is not a defense 3. Must prove employer is engaged in business 4. Proof beyond reasonable doubt of evidence

masters negligence if he fails to correct it in order to prevent the injury or damage (J. Makalintal) The owner of the car Yu was not liable because he did not see the carretela at a distance, however, he could not anticipated his drivers sudden decision to pass the carretela. The time element was such that there was not reasonable opportunity for Yu to assess the danger involved and warn the driver accordingly. Former owner of Motor Vehicle are liable for the tortuous acts of the new owner. Case: Equitable Leasing Corp vs Suyom, Sept 5, 2002 Facts: Equitable sold to Lim a Fuso tractor. After the sales price was fully paid, a deed of sale executed by Equitable in favor of Lim who had not registered the sale with the LTO. While the tractor was driven by Lims employee, it rammed into a house causing death and injuries and damages. Held: This court (SC) has consistently held that regardless of the sales made of motor vehicle, the registered owner is the lawful operator insofar as the public and third persons are concerned. Consequently it is directly and primary liable for the consequences of its operation in contemplation of the law. The owner of record is the employer of the driver while the actual owner is considered as merely its agent. Since Equitable remained the registered owner, it could not escape primary liability.

5. Owners of Motor vehicle (Art 2184)

a. Owner is in the motor vehicle is solidary liable with his driver b. Owner is not in the motor vehicle with the driver is subsidiary liable Case: Chapman vs Underwood, 27 Phil 374 Facts: Underwood riding in his car and his driver suddenly turned to the wrong side of the street and hit the plaintiff. Driver was negligent. Was the owner liable too? Held: Where the owner had reasonable opportunity to observe his driver and to direct the latter to cease there from, becomes himself responsible for such acts. On the other hand, if the driver, by sudden act of negligence and without opportunity to prevent the acts or its continuance, the owner is not responsible. Caedo vs Tu Khe Thai, 26 SCRA 419 Facts: Yu was riding in his Cadillac driven by Bernardo saw a carratela about 8 meters away. Instead of slowing down veered to the left to overtake and in so doing the car hit the carratellas left wheel and skidded obliquely hitting the on coming car of Caedo who despite slackened speed to avoid the collision was hit resulting to the injuries of Caedo and his passengers. Yus driver was negligent. Was Yu liable? Held: The basis of the master/employers liability in civil law is not respondent superior but rather the relationship of Pater Familias. The theory is that ultimately the negligence of the servant, if known to the master and susceptible of timely correction, reflects the