DEGREES OF NEGLIGENCE
MARINDUQUE VS WCC admissible as evidence in any damage suit or action.”
- Art. 12 RPC. Circumstances which exempt from criminal
liability. — the following are exempt from
FACTS:
On August 23, 1951, at 6:00 a.m. in Bo. Sumangga,
Mogpog, Marinduque, the deceased Mamador together
with other laborers of the Respondent-corporation,
(Marinduque Iron Mines Agents Inc.) boarded a truck
belonging to the latter, which was then driven by one
Procopio Macunat, also employed by the corporation,
and on its way to their place of work at the mine camp at
Talantunan, while trying to overtake another truck on the
company road, it turned over and hit a coconut tree,
resulting in the death of said Mamador and injury to the
others.”
Procopio Macunat was prosecuted, convicted and
sentenced to indemnify the heirs of the deceased.
(Criminal Case No. 1491). He has paid nothing however,
to the latter.
DECISION OF LOWER COURTS:1) Workmen’s
Compensation Commissioner: confirmed the referee’s
award of compensation to the heirs of Pedro Mamador for
his accidental death.
ISSUE: What is the effect of the deceased’s having
violated the employer’s prohibition against laborers
riding the hauLage trucks
RULING: No. There is no doubt that mere riding on
haulage truck or stealing a ride thereon is not negligence,
ordinarily. It couldn’t be, because transportation by truck
is not dangerous per se. It is argued that there was
notorious negligence in this particular instance because
there was the employer’s prohibition.
However there is practical unanimity in the proposition
that violation of a rule promulgated by a Commission or
board is not negligence per se; but it may be evidence of
negligence. Section 6 provides as follows:
“Sec. 6. Liability of third parties. — In case an employee
suffers an injury for which compensation is due under
this Act by any other person besides his employer, it shall
be optional with such injured employee either to claim
compensation from his employer, under this Act, or sue
such other person for damages, in accordance with law;
and in case compensation is claimed and allowed in
accordance with this Act, the employer who paid such
compensation or was found liable to pay the same, shall
succeed the injured employee to the right of recovering
from such person what he paid: Provided, That in case the
employer recovers from such third person damages in
excess of those paid or allowed under this Act, such
excess shall be delivered to the injured employee or any
other person entitled thereto, after deduction of the
expenses of the employer and the costs of the
proceedings. The sum paid by the employer for
compensation or the amount of compensation to which
the employee or his dependents are entitled, shall not be
It is the Petitioner’s contention that Criminal Case No.
1491 and its outcome constituted an election by the
employee (or his heirs) to sue the third person, such
election having the effect of releasing the employer.
However, Criminal Case No. 1491 was not a suit for
damages against the third person, it being alleged,
without contradiction that the heirs did not intervene
therein and have not so far received the indemnity
ordered by the court.
Indemnity granted the heirs in a criminal prosecution of
the “other person” does not affect the liability of the
employer to pay compensation.
As to the alleged “amicable settlement,” it consists of an
affidavit wherein, for the sum of 150 pesos, Mamador’s
widow promised “to forgive Macunat for the wrong
committed and not to bring him before the authorities for
prosecution.” Upon making such promise — Petitioner
argues — she elected one of the remedies, (against the
third person) and is barred from the other remedy
(against the employer). The contention may not be
sustained, inasmuch as all the widow promised was to
forego the offender’s criminal prosecution. Note further
that a question may be raised whether she could bind the
other heirs of the deceased.
PROOF OF NEGLIGENCE
A. BURDEN OF PROOF
RULE 131 ROC Section 1. Burden of proof.
— Burden of proof is the duty of a party to
present evidence on the facts in issue necessary to
establish his claim or defense by the amount of
evidence required by law.
B. PRESUMPTIONS
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. 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. 1734. Common carriers are responsible for the loss,
destruction, or deterioration of the goods, unless the same
is due to any of the following causes only:
(1) Flood, storm, earthquake, lightning, or other natural
disaster or calamity;
(2) Act of the public enemy in war, whether international
or civil;
(3) Act of omission of the shipper or owner of the goods;
(4) The character of the goods or defects in the packing or
in the containers;
(5) Order or act of competent public authority.
Art. 1735. In all cases other than those mentioned in Nos.
1, 2, 3, 4, and 5 of the preceding article, if the goods are
lost, destroyed or deteriorated, common carriers are
presumed to have been at fault or to have acted
negligently, unless they prove that they observed
extraordinary diligence as required in Article 1733.
C. RES IPSA LOQUITOR - the principle that the
occurrence of an accident implies negligence.
LAYUGAN VS. IAC
Facts:
Pedro T. Layugan filed an action for damages against
Godofredo Isidro, alleging that while at Baretbet,
Bagabag, Nueva Vizcaya, the Plaintiff and a companion
were repairing the tire of their cargo truck which was
parked along the right side of the National Highway; that
defendant's truck, driven recklessly by Daniel Serrano
bumped the plaintiff, that as a result, plaintiff was injured
and hospitalized where he incurred and will incur more
expenses as he recuperates from said injuries; Plaintiff's
right leg was amputated and that because of said injuries
he would be deprived of a lifetime income.
To free themselves from liability, defendants Isidro
[owner] and Serrano [driver] averred that he knows his
responsibilities as a driver and further contends that it
was the negligence of plaintiff that was the proximate
cause of the accident. They alleged that plaintiff parked
his truck in a manner which occupied a part of the
highway and he did not even put a warning sign.
Subsequently, a third-party complaint was filed by the
defendant against his insurer, the Travellers Multi
Indemnity Corporation; that the third-party plaintiff
[Isidro], without admitting his liability to the plaintiff,
claimed that the third-party defendant [Travellers] is
liable to the former for contribution, indemnity and
subrogation by virtue of their insurance contract which
covers the insurer's liability for damages arising from
death, bodily injuries and damage to property. The
Insurance company argued that it is only liable for the
amount agreed in the policy and the complaint was
premature since no claim was made to it.
The RTC ruled in favor of the Petitioners. The CA
reversed the decision, stating that it is the petitioners who
were negligent since they did not exercise caution by
putting warning signs that their truck is park on the
shoulder of the highway.
Issue:
Whether or not Isidro is liable as employer of Serrano.
Ruling:
Yes! The SC held that the CA erroneously appreciated the
evidence. It was proven that the petitioner placed a
warning sign within 3 to 4 meters from their truck in the
form of a lighted kerosene lamp. The existence of this
warning sings was corroborated by Serrano, respondent's
driver, and further stated that when he saw a parked
truck, he kept on stepping on the brake pedal but it did
not function. Thus despite this warning signs, the truck
recklessly driven by Serrano and owned by Respondent
Isidro bumped the truck of petitioner.
The private respondent is sued under Art. 2176 in relation
to Art. 2180, paragraph 5, of the Civil Code. In the latter,
when an injury is caused by the negligence of a servant or
employee there instantly arises a presumption of law that
there was negligence on the part of the master or
employer either in the selection of the servant or
employee, or in supervision over him after selection, or
both. Such presumption is juris tantum and not juris et de
jure and consequently, may be rebutted. If follows
necessarily that if the employer shows to the satisfaction
of the court that in the selection and in the supervision he
has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved
from liability. In disclaiming liability for the incident, the
private respondent stresses that the negligence of his
employee has already been adequately overcome by his
driver's statement that he knew his responsibilities as a
driver and that the truck owner used to instruct him to be
careful in driving.
We do not agree with the private respondent in his
submission. In the first place, it is clear that the driver did
not know his responsibilities because he apparently did
not check his vehicle before he took it on the road. If he
did he could have discovered earlier that the brake fluid
pipe on the right was cut, and could have repaired it and
thus the accident could have been avoided. Moveover, to
our mind, the fact that the private respondent used to
intruct his driver to be careful in his driving, that the
driver was licensed, and the fact that he had no record of
any accident, as found by the respondent court, are not
sufficient to destroy the finding of negligence of the
Regional Trial Court given the facts established at the
trial. The private respondent or his mechanic, who must
be competent, should have conducted a thorough
inspection of his vehicle before allowing his driver to
drive it.
In the light of the circumstances obtaining in the case, we
hold that Isidro failed to prove that the diligence of a good
father of a family in the supervision of his employees
which would exculpate him from solidary liability with
his driver to the petitioner. But even if we concede that
the diligence of a good father of a family was observed by
Isidro in the supervision of his driver, there is not an iota
of evidence on record of the observance by Isidro of the
same quantum of diligence in the supervision of his
mechanic, if any, who would be directly in charge in
maintaining the road worthiness of his (Isidro's) truck.
But that is not all. There is paucity of proof that Isidro
exercised the diligence of a good father of a family in the
selection of his driver, Daniel Serrano, as well as in the
selection of his mechanic, if any, in order to insure the safe
operation of his truck and thus prevent damage to others.
Accordingly, the responsibility of Isidro as employer
treated in Article 2180, paragraph 5, of the Civil Code has
not ceased.
RAMOS VS. CA
FACTS:
Erlinda Ramos underwent a surgical procedure to
remove stone from her gall bladder (cholecystectomy).
They hired Dr. Hosaka, a surgeon, to conduct the surgery
at the De Los Santos Medical Center (DLSMC). Hosaka
assured them that he would find a good anesthesiologist.
But the operation did not go as planned, Dr. Hosaka
arrived 3 hours late for the operation, Dra. Gutierrez, the
anesthesiologist “botched” the administration of the
anesthesia causing Erlinda to go into a coma and suffer
brain damage. The botched operation was witnessed by
Herminda Cruz, sister in law of Erlinda and Dean of
College of Nursing of Capitol Medical Center.
The family of Ramos (petitioners) sued the hospital, the
surgeon and the anesthesiologist for damages. The
petitioners showed expert testimony showing that
Erlinda's condition was caused by the anesthesiologist in
not exercising reasonable care in “intubating” Erlinda.
Eyewitnesses heard the anesthesiologist saying “Ang
hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan.”
Diagnostic tests prior to surgery showed that Erlinda was
robust anD fit to undergo surgery.
The RTC held that the anesthesiologist ommitted to
exercise due care in intubating the patient, the surgeon
was remiss in his obligation to provide a “good
anesthesiologist” and for arriving 3 hours late and the
hospital is liable for the negligence of the doctors and for
not cancelling the operation after the surgeon failed to
arrive on time. The surgeon, anesthesiologist and the
DLSMC were all held jointly and severally liable for
damages to petitioners. The CA reversed the decision of
the Trial Court.
ISSUES: Whether or not the private respondents were
negligent and thereby caused the comatose condition of
Ramos.
HELD:
Yes, private respondents were all negligent and are
solidarily liable for the damages.
RATIO:
Res ipsa loquitur – a procedural or evidentiary rule which
means “the thing or the transaction speaks for itself.” It is
a maxim for the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may
permit an inference or raise a presumption of negligence,
or make out a plaintiff’s prima facie case, and present a
question of fact for defendant to meet with an
explanation, where ordinarily in a medical malpractice
case, the complaining party must present expert
testimony to prove that the attending physician was
negligent.
This doctrine finds application in this case. On the day of
the operation, Erlinda Ramos already surrendered her
person to the private respondents who had complete and
exclusive control over her. Apart from the gallstone
problem, she was neurologically sound and fit. Then,
after the procedure, she was comatose and brain
damaged—res ipsa loquitur!—the thing speaks for itself!
Negligence – Private respondents were not able to
disprove the presumption of negligence on their part in
the care of Erlinda and their negligence was the
proximate cause of her condition. One need not be an
anesthesiologist in order to tell whether or not the
intubation was a success. [res ipsa loquitur applies here].
The Supreme Court also found that the anesthesiologist
only saw Erlinda for the first time on the day of the
operation which indicates unfamiliarity with the patient
and which is an act of negligence and irresponsibility.
The head surgeon, Dr. Hosaka was also negligent. He
failed to exercise the proper authority as the “captain of
the ship” in determining if the anesthesiologist observed
the proper protocols. Also, because he was late, he did not
have time to confer with the anesthesiologist regarding
the anesthesia delivery.
The hospital failed to adduce evidence showing that it
exercised the diligence of a good father of the family in
hiring and supervision of its doctors (Art. 2180). The
hospital was negligent since they are the one in control of
the hiring and firing of their “consultants”. While these
consultants are not employees, hospitals still exert
significant controls on the selection and termination of
doctors who work there which is one of the hallmarks of
an employer-employee reationship. Thus, the hospital
was allocated a share in the liability.
Damages – temperate damages can and should be
awarded on top of actual or compensatory damages in
instances where the injury is chronic and continuing.
DM CONSUNJI VS CA
FACTS: Jose A. Juego was crushed to death when the
platform he was then on board and performing work, fell.
And the falling of the platform was due to the removal or
getting loose of the pin which was merely inserted to the
connecting points of the chain block and platform but
without a safety lock.1
Jose Juego’s widow, Maria, filed in the Regional Trial
Court (RTC) of Pasig a complaint for damages against the
deceased’s employer, D.M. Consunji, Inc. The employer
raised, among other defenses, the widow’s prior
availment of the benefits from the State Insurance Fund.
RTC rendered a decision in favor of the widow Maria
Juego. On appeal by D. M. Consunji, the Court of Appeals
(CA) affirmed the decision of the RTC in toto. D. M.
Consunji now seeks the reversal of the CA decision.
Portions of PO3 Villanueva’s testimony which were of his
personal knowledge suffice to prove that Jose Juego
indeed died as a result of the elevator crash. PO3
Villanueva had seen Juego’s remains at the morgue,12
making the latter’s death beyond dispute. PO3 Villanueva
also conducted an ocular inspection of the premises of the
building the day after the incident13 and saw the
platform for himself.14 He observed that the platform
was crushed15 and that it was totally damaged.16 PO3
Villanueva also required Garcia and Fabro to bring the
chain block to the police headquarters. Upon inspection,
he noticed that the chain was detached from the lifting
machine, without any pin or bolt.17
What petitioner takes particular exception to is PO3
Villanueva’s testimony that the cause of the fall of the
platform was the loosening of the bolt from the chain
block. It is claimed that such portion of the testimony is
mere opinion. Subject to certain exceptions,18 the opinion
of a witness is generally not admissible.19
ISSUE: IS THERE RES IPSA LOQUITOR?
HELD: The CA held that all the requisites of res ipsa
loquitur are present in the case at bar:
There is no dispute that appellee’s husband fell down
from the 14th floor of a building to the basement while he
was working with appellant’s construction project,
resulting to his death. The construction site is within the
exclusive control and management of appellant. It has a
safety engineer, a project superintendent, a carpenter
leadman and others who are in complete control of the
situation therein. The circumstances of any accident that
would occur therein are peculiarly within the knowledge
of the appellant or its employees. On the other hand, the
appellee is not in a position to know what caused the
accident. Res ipsa loquitur is a rule of necessity and it
applies where evidence is absent or not readily available,
provided the following requisites are present: (1) the
accident was of a kind which does not ordinarily occur
unless someone is negligent; (2) the instrumentality or
agency which caused the injury was under the exclusive
control of the person charged with negligence; and (3) the
injury suffered must not have been due to any voluntary
action or contribution on the part of the person injured. x
x x.
No worker is going to fall from the 14th floor of a building
to the basement while performing work in a construction
site unless someone is negligent[;] thus, the first requisite
for the application of the rule of res ipsa loquitur is
present. As explained earlier, the construction site with all
its paraphernalia and human resources that likely caused
the injury is under the exclusive control and management
of appellant[;] thus[,] the second requisite is also present.
No contributory negligence was attributed to the
appellee’s deceased husband[;] thus[,] the last requisite is
also present. All the requisites for the application of the
rule of res ipsa loquitur are present, thus a reasonable
presumption or inference of appellant’s negligence arises.
x x x.24
Petitioner does not dispute the existence of the requisites
for the application of res ipsa loquitur, but argues that the
presumption or inference that it was negligent did not
arise since it "proved that it exercised due care to avoid
the accident which befell respondent’s husband."
Petitioner apparently misapprehends the procedural
effect of the doctrine. As stated earlier, the defendant’s
negligence is presumed or inferred25 when the plaintiff
establishes the requisites for the application of res ipsa
loquitur. Once the plaintiff makes out a prima facie case
of all the elements, the burden then shifts to defendant to
explain.26 The presumption or inference may be rebutted
or overcome by other evidence and, under appropriate
circumstances disputable presumption, such as that of
due care or innocence, may outweigh the inference.27 It
is not for the defendant to explain or prove its defense to
prevent the presumption or inference from arising.
Evidence by the defendant of say, due care, comes into
play only after the circumstances for the application of the
doctrine has been established.1âwphi1.nêt
In any case, petitioner cites the sworn statement of its
leadman Ferdinand Fabro executed before the police
investigator as evidence of its due care. According to
Fabro’s sworn statement, the company enacted rules and
regulations for the safety and security of its workers.
Moreover, the leadman and the bodegero inspect the
chain block before allowing its use.
It is ironic that petitioner relies on Fabro’s sworn
statement as proof of its due care but, in arguing that
private respondent failed to prove negligence on the part
of petitioner’s employees, also assails the same statement
for being hearsay.
Petitioner is correct. Fabro’s sworn statement is hearsay
and inadmissible. Affidavits are inadmissible as evidence
under the hearsay rule, unless the affiant is placed on the
witness stand to testify thereon.28 The inadmissibility of
this sort of evidence is based not only on the lack of
opportunity on the part of the adverse party to cross-
examine the affiant, but also on the commonly known fact
that, generally, an affidavit is not prepared by the affiant
himself but by another who uses his own language in
writing the affiant’s statements which may either be
omitted or misunderstood by the one writing them.29
Petitioner, therefore, cannot use said statement as proof
of its due care any more than private respondent can use
it to prove the cause of her husband’s death. Regrettably,
petitioner does not cite any other evidence to rebut the
inference or presumption of negligence arising from the
application of res ipsa loquitur, or to establish any defense
relating to the incident.