ONG vs.

METROPOLITAN
104 Phil 397 Civil Law Torts and Damages Due Diligence as a Defense Last
Clear Chance; when not applied
On July 5, 1952, Dominador Ong (14 years old) and his two brothers went to the
swimming pool operated by Metropolitan Water District (MWD). After paying the
entrance fee, the three proceeded to the small pool.
The swimming pools of MWD are provided with a ring buoy, toy roof, towing line,
oxygen resuscitator and a first aid medicine kit. The bottom of the pools is painted
with black colors so as to insure clear visibility. There is on display in a conspicuous
place within the area certain rules and regulations governing the use of the pools.
MWD employs six lifeguards who are all trained as they had taken a course for that
purpose and were issued certificates of proficiency. These lifeguards work on
schedule prepared by their chief and arranged in such a way as to have two guards
at a time on duty to look after the safety of the bathers. There is a male nurse and a
sanitary inspector with a clinic provided with oxygen resuscitator. And there are
security guards who are available always in case of emergency.
Later, Dominador told his brothers that hell just be going to the locker room to
drink a bottle of Coke. No one saw him returned. Later, the elder Ong noticed
someone at the bottom of the big pool and notified the lifeguard in attendant
(Manuel Abao), who immediately dove into the water. The body was later identified
as Dominadors. He was attempted to be revived multiple times but of no avail.
The parents of Ong sued MWD averring that MWD was negligent in selecting its
employees. During trial, the elder brother of Ong and one other testified that Abao
was reading a magazine and was chatting with a security guard when the incident
happened and that he was called a third time before he responded. Plaintiff further
alleged that even assuming that there was no negligence on the part of MWD, it is
still liable under the doctrine of Last Clear Chance for having the last opportunity
to save the Dominador, its employees failed to do so.
ISSUE: Whether or not MWD is liable for the death of Dominador Ong.
HELD: No. As established by the facts, MWD was not negligent in selecting its
employees as all of them were duly certified. MWD was not negligent in managing
the pools as there were proper safety measures and precautions/regulations that
were placed all over the pools. Hence, due diligence is appreciated as a complete
and proper defense in this case. Further, the testimony in court by the elder Ong

and the other witness was belied by the statements they have given to the
investigators when they said that the lifeguard immediately dove into the water
when he was called about the boy at the bottom of the pool.
The doctrine of Last Clear Chance is of no application here. It was not established
as to how Dominador was able to go to the big pool. He went to the locker and
thereafter no one saw him returned not until his body was retrieved from the
bottom of the big pool. The last clear chance doctrine can never apply where the
party charged is required to act instantaneously (how can the lifeguard act
instantaneously in dissuading Dominador from going to the big pool if he did not see
him go there), and if the injury cannot be avoided by the application of all means at
hand after the peril is or should have been discovered; at least in cases in which any
previous negligence of the party charged cannot be said to have contributed to the
injury.