TORTS AND DAMAGES

A tort is a wrong independent of a contract, which arises from an act or

omission of a person which causes some injury or damage directly or
indirectly to another person.

Would a prudent man, in the position of the person to whom negligence

is attributed, foresee harm to the person injured as a reasonable
consequence of the course about to be pursued? If so, the law imposed a
dutyon the actor to refrain from the course or take precaution against its
mischievous results, and the failure to do so constitutes negligence

Damages refer to the pecuniary compensation or recompense to be paid

to the injured party.

Can There Be A Tort Or Quasi-Delict In Breach Of Contract?

Distinctions Between Damages, Damage And Injury.

-Generally, no. However, the existence of contract does not bar the
commission of a tort by one against the other and the consequent
recovery of damages.

Injury is the illegal invasion of a legal right while damage is the loss,
hurt, or harm which results from the injury, and damages are the
recompense or compensation awarded for the damage suffered.
Art. 2176. Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged 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 and is governed by the provisions of this
Chapter. (1902a)
Art. 2177. Responsibility for fault or negligence under the preceding article
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. (n)
Art. 2178. The provisions of Articles 1172 to 1174 are also applicable to a
quasi-delict. (n)
Art. 2179. When the plaintiffs own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But if his
negligence was only contributory, the immediate and proximate cause of
the injury being the defendants lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be awarded. (n)

Elements Of Quasi-Delict
1.) Damage to the plaintiff;
2.) Negligence, by act or omission, of which defendant, or some person for
whose acts, he must respond, was guilty; and
3.) Connection of cause and effect between such negligence and damage
Negligence It consists in the omission to do acts required under the
attendant circumstances resulting in damage or injury to another.
Test Of Determining Negligence

Medical Malpractice
Form of negligence which consists in the failure of the physician or surgeon
to apply to his practice of medicine that degree of care and skill which is
ordinarily employed by the profession generally, under similar conditions,
and in like surrounding circumstances. In order to successfully pursue such
a claim, a patient must prove that such physician or surgeon would have
done, or that he or she did something that a reasonably prudent physician
or surgeon would not have done, and that the failure of action caused
injury to the patient.
There are thus four elements involved in medical negligence cases,
namely: duty, breach, Injury and proximate causation.
Elements of doctrine of res ipsa loquitur are:
(1) the occurrence of an injury;
(2) the thing which caused the injury was under the control and
management of the defendant;
(3) the occurrence was such that in the ordinary course of things, would
not have happened if those who had control or management used proper
care; and
(4) the absence of explanation by the defendant.
Under the Captain-of-the-Ship Doctrine, a surgeon is likened to a
captain of the ship in that it is his duty to control everything going on in
the operating room (Ramos vs. Court of Appeals, 380 SCRA 467)

Proximate cause is that cause which, in natural and continuous

sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred.
An efficient intervening cause is one which destroys the causal
connection between the negligent act and the injury and thereby negatives
liability.
Contributory negligence has been defined as the act or omission
amounting to want of ordinary care on the part of the person injured
which, concurring with the defendants negligence, is the proximate cause
of the injury.
A child under nine (9) years of age is conclusively presumed incapable of
contributory negligence as a matter of law. (Jarco Marketing Corp. vs. CA)
The principle of contributory negligence cannot be used as defense in
criminal cases through reckless imprudence because one cannot allege the
negligence of another to evade the effects of his own negligence.
Attractive Nuisance
-One who maintains on his premises dangerous instrumentalities or
appliances of a character likely to attract children in play. And who fails to
exercise ordinary care to prevent children from playing therewith or
resorting thereto, is liable to a child of tender years who is injured thereby,
even if the child is technically a trespasser in the premises.
The attractive nuisance doctrine is generally not applicable to bodies
of water, in the absence of some unusual condition or artificial features
other than the mere water and its location. (Hidalgo Enterprises, Inc. vs.
Balandan, supra, Taylor vs. Manila Electric Railroad and Light Co.. 16 Phil.
8)
Doctrine Of Last Clear Chance

1.) Plaintiff is placed in danger by his own negligent acts and he is unable
to get out from such situation by any means;
2.) Defendant knows that the plaintiff is in danger and knows or should
have known that the plaintiff was unable to extricate himself therefrom;
and,
3.) Defendant had the last clear chance or opportunity to avoid the
accident through the exercise of ordinary care but failed to do so, and the
accident occurred as a proximate result of such failure.
Art. 2180. The obligation imposed by Article 2176 is demandable not only
for ones own acts or omissions, but also for those of persons for whom one
is responsible.
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 incapacitated
persons who are under their authority and live in their company.
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 employees and
household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry.
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 provided 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 apprentices, so
long as they remain in their custody.

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 (Picart vs. Smith, 37 Phil. 809)

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)

Elements Of Doctrine Of Last Clear Chance.

The application of Article 2180 is NOT limited to school of arts and trades.
It applies to all, including academic institutions where the teacher-in-

charge is liable for the acts of his students. In the case of establishment of
arts and trades, it is the head thereof, and only he, who shall be liable.
Art. 2181. Whoever pays for the damage caused by his dependents 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
guardian, 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)

If the tortfeasor is a minor, whether sane or insane, the complaint and the
application for guardianship shall be filed with the Family Court.
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 who has
suffered damage. (1905)

Wild Beast Theory

The true rule of law is that the person who for his own purposes brings on
his land and collects and keeps there anything likely to do mischief if it
escapes, must keep it at his peril, and if he does not do so, is prima facie
answerable for all the damages which is the natural consequence of its
escape.
Possessor Need Not Be The Owner.
The law used the word possessor instead of owner. The clear implication
is that the person in charge of the animal need not be the owner, although
the possessor may also be the owner at the same time. . If the animal like
a horse or carabao was borrowed by someone for his own use, the latter
alone, should be held liable for the damage caused while the animal was
under his control.
Elements of the doctrine of assumption of risk:
The plaintiff must know that the risk is present;
He must further understand its nature; and
His choice to incur it is free and voluntary.

Exceptions To The Rule Of liability Of The Possessor:

1.) If the damage was caused by force majeure,
2.) If the damage was caused by the fault of the plaintiff or person injured.
3.) If damage was caused by the act of a third person.If a third person
excites or provokes the animal, which in turn injures another, he is liable
for the resulting damage and not the possessor.
Art. 2184. In motor vehicle mishaps, the owner is solidarily liable with his
driver, if the former, who was in the vehicle, could have, by the use of the
due diligence, prevented the misfortune. It is disputably presumed that a
driver was negligent, if he had been found guilty or reckless 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 Article 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 corporation
or office, to answer for damages to third persons. The amount of the bond
and other terms shall be fixed by the competent public official. (n)
Art. 2187. Manufacturers and processors of foodstuffs, drinks, toilet
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)

-The principle of strict liability in tort means that proof of negligence is not
necessary. It applies even if the defendant manufacturer or processor has
exercised all the possible care in the preparation and sale of his product.
There is strict liability if one is made independent of fault. Negligence or
intent after establishing certain facts specified by law. It includes liability
for conversion and for injuries caused by animals, ultra-hazardous
activities and nuisance.
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, except when the
possession or use thereof is indispensable in his occupation 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 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
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. (1909)

Prescriptive Period- The prescriptive period for the filing of the action for
damages is fifteen (15) years from the time the cause of action had
accrued.
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 liable for
quasi-delict is solidary. (n)

Joint Tortfeasors Solidarity Liable.Joint tortfeasors are jointly and

severally liable for the tort which they commit. The person injured may
sue all of them, or any number less than all, and all together are jointly
and severerally liable for the whole damage. It is no defense for the one
sued alone, but the others who participated in the wrongful act are not
joined with them as defendants; nor it is any excuse for him that his
participation in the tort was insignificant as compared with that of the
others.

Art. 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
Art. 20. Every person who, contrary to law, wilfully or negligently causes
damage to another, shall indemnify the latter for the same.
Art. 21. 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.
Art. 22. Every person who through an act of performance by another, or
any other means, acquires or comes into possession of something at the
expense of the latter without just or legal ground, shall return the same to
him.

Art. 23. Even when an act or event causing damage to another's property
was not due to the fault or negligence of the defendant, the latter shall be
liable for indemnity if through the act or event he was benefited.
Art. 24. In all contractual, property or other relations, when one of the
parties is at a disadvantage on account of his moral dependence,
ignorance, indigence, mental weakness, tender age or other handicap, the
courts must be vigilant for his protection.
Art. 25. Thoughtless extravagance in expenses for pleasure or display
during a period of acute public want or emergency may be stopped by
order of the courts at the instance of any government or private charitable
institution.
Art. 26. Every person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons. The following and
similar acts, though they may not constitute a criminal offense, shall
produce a cause of action for damages, prevention and other relief:

Art. 30. When a separate civil action is brought to demand civil liability
arising from a criminal offense, and no criminal proceedings are instituted
during the pendency of the civil case, a preponderance of evidence shall
likewise be sufficient to prove the act complained of.
Art. 31. When the civil action is based on an obligation not arising from the
act or omission complained of as a felony, such civil action may proceed
independently of the criminal proceedings and regardless of the result of
the latter.
Art. 32. Any public officer or employee, or any private individual, who
directly or indirectly obstructs, defeats, violates or in any manner impedes
or impairs any of the following rights and liberties of another person shall
be liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;

(1) Prying into the privacy of another's residence:

(3) Freedom to write for the press or to maintain a periodical publication;

(2) Meddling with or disturbing the private life or family relations of

another;

(4) Freedom from arbitrary or illegal detention;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly
station in life, place of birth, physical defect, or other personal condition.
Art. 27. Any person suffering material or moral loss because a public
servant or employee refuses or neglects, without just cause, to perform his
official duty may file an action for damages and other relief against he
latter, without prejudice to any disciplinary administrative action that may
be taken.
Art. 28. Unfair competition in agricultural, commercial or industrial
enterprises or in labor through the use of force, intimidation, deceit,
machination or any other unjust, oppressive or highhanded method shall
give rise to a right of action by the person who thereby suffers damage.
Art. 29. When the accused in a criminal prosecution is acquitted on the
ground that his guilt has not been proved beyond reasonable doubt, a civil
action for damages for the same act or omission may be instituted. Such
action requires only a preponderance of evidence. Upon motion of the
defendant, the court may require the plaintiff to file a bond to answer for
damages in case the complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is based upon reasonable
doubt, the court shall so declare. In the absence of any declaration to that
effect, it may be inferred from the text of the decision whether or not the
acquittal is due to that ground.

(5) Freedom of suffrage;

(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for
public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects
against unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies for
purposes not contrary to law;
(13) The right to take part in a peaceable assembly to petition the
government for redress of grievances;
(14) The right to be free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a
speedy and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witness in his behalf;

(17) Freedom from being compelled to be a witness against one's self, or

from being forced to confess guilt, or from being induced by a promise of
immunity or reward to make such confession, except when the person
confessing becomes a State witness;
(18) Freedom from excessive fines, or cruel and unusual punishment,
unless the same is imposed or inflicted in accordance with a statute which
has not been judicially declared unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the
defendant's act or omission constitutes a criminal offense, the aggrieved
party has a right to commence an entirely separate and distinct civil action
for damages, and for other relief. Such civil action shall proceed
independently of any criminal prosecution (if the latter be instituted), and
mat be proved by a preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages may also
be adjudicated.
The responsibility herein set forth is not demandable from a judge unless
his act or omission constitutes a violation of the Penal Code or other penal
statute.
Art. 33. In cases of defamation, fraud, and physical injuries a civil action
for damages, entirely separate and distinct from the criminal action, may
be brought by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall require only a
preponderance of evidence.

Art. 34. When a member of a city or municipal police force refuses or fails
to render aid or protection to any person in case of danger to life or
property, such peace officer shall be primarily liable for damages, and the
city or municipality shall be subsidiarily responsible therefor. The civil
action herein recognized shall be independent of any criminal proceedings,
and a preponderance of evidence shall suffice to support such action.
Art. 35. When a person, claiming to be injured by a criminal offense,
charges another with the same, for which no independent civil action is
granted in this Code or any special law, but the justice of the peace finds
no reasonable grounds to believe that a crime has been committed, or the
prosecuting attorney refuses or fails to institute criminal proceedings, the
complaint may bring a civil action for damages against the alleged
offender. Such civil action may be supported by a preponderance of
evidence. Upon the defendant's motion, the court may require the plaintiff
to file a bond to indemnify the defendant in case the complaint should be
found to be malicious.
If during the pendency of the civil action, an information should be
presented by the prosecuting attorney, the civil action shall be suspended
until the termination of the criminal proceedings.
Art. 36. Pre-judicial questions which must be decided before any criminal
prosecution may be instituted or may proceed, shall be governed by rules
of court which the Supreme Court shall promulgate and which shall not be
in conflict with the provisions of this Code.