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Torts and Damages

Sources of Philippine Tort Law

Chapter on Quasi-Delicts (Arts. 2176-2194);
Chapter on Quasi-Contracts (Arts. 2144-2148, 2150, 2151, 2159);
Chapter on Human Relations (Arts. 19-36);
Arts. 1172-1174; 1723; 2003; 309; and, 1314 of the NCC;
Arts. 2195-2235 of the NCC (Title XVIII; Damages);
Chapter on Nuisance (Arts. 694-707);
Chapter III, Section 4, on Common Carriers (Arts. 1755-1763);
Family Code of the Philippines;
Arts. 100-103 of the RPC;
R.A. No. 7877 (Anti-Sexual Harassment Act);
Supreme Court decisions;
American law and jurisprudence; and,
Opinion of legal authors.
NOTE: primary statute that governs torts in the Philippines is the New Civil
Code. Art. 1157 of the NCC includes Quasi-Delict as a source of obligation
(extracontractual obligation). The Supreme Court likewise borrows heavily
from decisions of the Courts in other countries especially Spain and the
United States.
Article 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)

Article 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)

Article 2178. The provisions of articles 1172 to 1174 are also applicable to a quasi-delict.
(n) Article 2179. When the plaintiff's 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 defendant's lack
of due care, the plaintiff may recover damages, but the courts shall mitigate the damages
to be awarded. (n)
Article 2180. The obligation imposed by article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for whom one is
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. 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)
Article 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) Article 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)

Article 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)

Article 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 of 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)
Article 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) Article 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)
Article 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)

Article 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)

Article 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)

Article 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)
Article 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)

Article 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)

Article 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)

Article 2194. The responsibility of two or more persons who are liable for quasi-delict
is solidary. (n)
Origin – taken directly from the French; a derivation of the Latin word “torquere”
which means “to twist”. This was not used as a technical term of law until the
beginning of the 19th century (Pineda, pp. 3)

Concept – an unlawful violation of private right, not created by contract, and gives
rise to an action for damages (Aquino, pp. 1).

It is an act or omission of a person which causes some injury or damage directly or

indirectly to another person (Pineda, pp. 2), without any previous existing lawful
relation of which the said act or omission may be said to be a natural outgrowth or
incident. It is a legal wrong committed upon the person or property independent of
contract. It may either be (1) a direct invasion of some legal right of the individual;
(2) the infraction of some public duty by which special damage accrues to the
individual; (3) the violation of some private obligation by which like damage accrues
to the individual.
NOTE: There is no universal formula for tort liability. Tortious acts cannot be listed
exhaustively (Pineda, pp. 3)

KIND OF Contractual Civil Negligence, Criminal

QuasiDelict, Tort, or
NEGLIGENCE Negligence Culpa Extra-Contractual

PROOF NEEDED Preponderance of Preponderance of Proof of guilt

evidence evidence beyond reasonable
ONUS Contracting party Victim must prove 1. Prosecution must
PROBANDI*** must prove1.The The damage
 prove the guilt
existence of the suffered; 2.The of the accused
negligence of the
contract; 2.The beyond reasonable
breach thereof causal connection doubt
between the
damage and the
Culpa contractual Culpa Aquillana Culpa Criminal

DEFENSES Exercise of Exercise of Defenses provided

AVAILABLE extraordinary diligence of a good for under the
diligence (in father of a family Revised Penal Code
contracts of in the selection and
carriage), supervision of
Force employees

EXISTENCE OF There is pre- No pre-existing No pre-existing

CONTRACT existing contract contract contract
 Also known as Culpa Aquiliana

 Whoever by act or omission causes damages to another,

there being no 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. (Art. 2176, Civil Code)

 Torts – acts giving rise to civil liability, but are not

necessarily the consequences of crimes or contractual
Quasi-Delict; Concept - 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 (Art.
2176, NCC).

Reason for the Use of Quasi-Delict instead of Tort in NCC – the term quasi-delict
was deliberately used to designate obligations which do not arise from law,
contracts, quasi-contracts, or criminal offenses. The term tort was not used because
it is broader in coverage as it covers, in common law countries, acts which are
intentional or malicious, which latter acts in the general plan of the Philippine legal
system are governed by the Revised Penal Code (Pineda, pp. 4). However, there is
an intent to adopt the expanded concept of tort (Aquino, pp. 6).

Quasi-Delict covers both Punishable and NonPunishable Negligence – traditional

concept of quasidelict is one that excludes acts which are intentional or malicious
and acts which arise from pre-existing contracts. However, the case of Barredo v.
Garcia, in effect, followed the English Law on torts which makes no distinction
between intentional and negligent injuries (Pineda, pp. 5).
Furthermore, in Elcano v. Hill7, the Court ruled that the Art. 2176 of the NCC no
longer uses the phrase “not punishable by law” for according to Justice Bocobo, then
Chairman of the Civil Code Commission, that such phrase could lead to an
undesirable construction or interpretation of the letter of the law that “killeth, rather
than the spirit that giveth life.” By deleting such phrase, it was made clear that the
concept of culpa aquiliana includes acts which are criminal in character or in
violation of the penal law, whether voluntary or negligent (Aquino, pp. 8-9).

Explanation of Concepts

Damage – the loss, hurt or harm which results from injury. It differs from damages
which term refers to the recompense or compensation awarded for the damage

Fault – that condition where a person acts in a way or manner contrary to what
normally should have been done. It is a positive act but the act was done contrary to
the normal way of doing it, and causing damage or injury to another.

Negligence – consists in the omission to do acts required under the attendant

circumstances resulting in damage or injury to another (Pineda, pp. 7-8).
• Kinds of Tort Liabilities – includes liability for
legal wrongs encompassing three types of
conduct, namely:

• intentional torts,
• negligence and
• strict liability.
Negligence – involves voluntary acts or omissions that result in injury of
others, without intending to cause the same (Aquino, pp. 2). The failure to
observe for the protection of the interests of another person, that degree of
care, precaution and vigilance which the circumstances justly demand,
whereby such other person suffers injury (Pineda, pp. 8).

Intentional Torts – conduct where the actor desires to cause the

consequences of his acts or believe the consequences are substantially certain
to result from it (Aquino, pp. 2); actor intended to do what the law has
declared wrong (Pineda, pp. 9). It includes assault and battery, false
imprisonment, defamation, invasion of privacy, and interference of property.

Strict Liability – a person is made liable independent of fault or negligence

upon submission of proof of certain facts. The conduct is generally not
wrongful in itself but the wrong consists in causing harm by engaging in
certain types of risky activities (Aquino, pp. 2).
 Act or omission

 Presence of fault or negligence (lack of due care)

 Damage to another

 Causal connection between the fault or negligence and

the damage

 No pre-existing contractual relation. (Manresa)

NEED FOR A No need There must be a perfected
CONTRACT contract

FOUNDATION FOR The general duty of care contract

LIABILITY owed to the public (a)

DILIGENCE REQUIRED Diligence of a good father Extraordinary diligence

of a family (DGFF) (EOD) (b)

WHO IS LIABLE Both CC-Employer (ER) The CC-Operator/Owner

& Employee (EE) or Employer, not the
employee (driver)
TYPE OF LIABILITY CC-ER & negligent EE: ER: direct & primary, not
direct, primary & solidary solidary with EE
(but is not ER vicariously
IMPOSITION OF CC-ER: vicarious or Directly imposed on the
LIABILITY*** imputed: he is made to CC-ER because of his own
answer for the negligence breach of contract
of the EE

DEFENSE OF ER*** Diligence in the selection & CC-ER cannot invoke the
supervision of the EE same defense

PRESUMPTION OF Negligence must be Negligence is presumed the

NEGLIGENCE* ** established as a requisite moment the
passenger/goods did not
reach the destination, the
passenger was injured or
goods were lost/damaged
PROXIMATE CAUSE applicable Not applicable, hence CC still
liable even if it’s not the proximate
cause of the accident
 Commonly understood as conduct which creates
an undue risk of harm to others.
 It is the failure to observe that degree of care,
precaution and vigilance which the
circumstances justly demand, whereby such
other person suffers injury.

imprescriptible Art. 1143(1) To demand a right of way; (2) To bring an action to abate a
public or private nuisance
30 years Art. 1141. Real actions over immovables prescribe after thirty years…
without prejudice to what is established for the acquisition of ownership and
other real rights by prescription.
10 years Art. 1142. A mortgage action prescribes after ten years Art. 1144.(1) Upon a
written contract; (2) Upon an obligation created by law;(3) Upon a judgment.
6 years Art. 1145. (1) Upon an oral contract; (2) Upon a quasi-contract.

5 years Art. 1149. All other actions whose periods are not fixed in this Code or in
other laws must be brought within five years from the time the right of action
4 years Art. 1146.(1) Upon an injury to the rights of the plaintiff;(2) Upon a quasi-
delict; However, if public officer…arising from Martial Law including the
arrest, detention and/or trial of the plaintiff…within one (1) year.

8 years Art. 1140. Actions to recover movables shall prescribe eight years from the
time the possession thereof is lost, unless the possessor has acquired the
ownership by prescription for a less period…

1 year Art. 1147. (1) For forcible entry and detainer; (2) For defamation

Ordinary skill Mortuaries

Reasonable care Railroad companies

Reasonable degree of care and skill Lawyers

Reasonable skill and competence Medical doctors

Utmost skill and care Driver/overtaker (great amount of

diligence to ensure safety of vehicles,
passengers, pedestrians)
Reasonable diligence Contractor in a mining exploration who
withdraws from a technical assistance
High degree of diligence Electric companies; Bank teller; Gun store
Greater degree of diligence Mortgagee-bank in dealing with registered
land (unlike private individuals)
Highest degree of diligence Banks
DUE DILIGENCE only (is this similar Clerk who prepares the transcript of a deposition
to DGFF? See last item (Rule 23, Sec 29(f)); Movant who wants to request
postponement OF (R30S3); Commissioner
of a hearing
in a hearing of Trial by Commissioners (R32S8);
Sheriff who attaches a property (R57S5); Master or
agent of a carrier under COGSA; in the absence of
stipulation or legal provision, the diligence required in
the performance of the obligation is that which is
expected of a good father of a family (Syquia vs CA)
DILIGENCE OF A GOOD FATHER Mechanic; the Passenger of a common carrier to
OF A FAMILY (DGFF) avoid injury to himself (Art 1761); Employees of
common carriers in preventing injuries (1763);
Creditor in a contract of Pledge; Usufructuary (589);
Obligor if the contract does not state diligence (1173);
Agent in a contract of Agency (1885); Depositary of
a sequestered property (2008); Officious manager in
negotiorum gestio (2145); Party suffering Loss or
Injury (2203); in an Obligation to give something
(1163); matters under Art 2180 DGFF to prevent

EXTRAORDINARY DILIGENCE Common carriers for goods; Financial

(EOD) or UTMOST DILIGENCE OF A institutions in extending loans; when the
VERY CAUTIOUS PERSON (UDVCP) Court speaks of EOD, it is that extreme
for Common carriers on their passengers measure of care and caution, which
persons of unusual prudence and
circumspection observe for securing and
preserving their own property or rights
(Loadmasters vs Glodel)

Standard degree of diligence required in Stevedoring company; Arrastre operator

stevedoring companies

Strict accounting for contracted services Travel & package tour operators
Persons Liable
 A. Tortfeasor
 B. Persons Vicarously Liable
 Parents – father, mother (minor children, living in their
 Guardians – (minors or incapacitated persons, living in their
company, under their authority)
 Owners and Managers of Establishments or Enterprises
 Employers
 State – when it acts through a special agent
 Schools, Administrator, Teacher – “arts and trades”
 Persons expressly made liable by law – owners of animals,
motor vehicles.
 Contributory Negligence

 Concurrent Negligence

 Doctrine of Last Clear Chance

 Emergency Rule

 Doctrine of Assumption of Risk

 Due Diligence

 Fortuitous Event

 Damnum Absque Injuria

 Exercise of due diligence of a good father of a family in

the selection and engagement of employees.

 Proximate Cause
Proximate Cause
That cause which, in its natural and continuous
sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the
result would not have occurred.
Doctrine of Last Clear
 Also known as Doctrine of Discovered Peril, Doctrine of
Supervening Negligence, The Humanitarian Doctrine

 “Where both parties are negligent, but the negligent act

of one succeeds that of the other by an appreciable
interval of time, the one who had 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)
Damnum Absque Injuria
 Although there was physical damage, there was no “legal
 Legal exercise of a right. As a general rule, a person has
the right to the natural use and enjoyment of his own
property, according to his pleasure, for all the purposes
to which such property is usually applied.
 Injury – illegal invasion of a legal right.
 Damage – the loss, hurt, or harm which results from the
Emergency Rule
An individual who suddenly finds himself in a situation of
danger and is required to act without much time to consider
the best means that may be adopted to avoid the impending
danger, is not guilty of negligence if he fails to undertake
what subsequently and upon reflection may appear to be a
better solution, unless the emergency was brought by his
own negligence.

Gan vs. Court of Appeals (165 SCRA 378)

Res ipsa loquitur
 Peculiar to the law of negligence; recognizes that prima
facie negligence may be established without direct proof.
 Requisites:
 1. the accident was of such character as to warrant an
interference that it would not have happened without the
defendant’s negligence;
 2. accident must have been caused by an agency or
instrumentality within the exclusive management and
control of the person charged with the negligence
complained of;
 3. accident must not have been due to the voluntary action
or contribution on the part of the person injured.
Contributory Negligence
Conduct on the part of the injured party,
contributing as a legal cause to the harm he has
suffered, which falls below the standard to which he
is required to conform for his own protection.
Assumption of Risk
 Intentional exposure to a known danger;

 One who voluntarily assumed the risk of an injury from

a known danger cannot recover in an action for
negligence or an injury is incurred.

 Applies to all known dangers.

 Moral
 Exemplary
 Nominal
 Temperate
 Actual
 Liquidated
 (keyword: M E N T A L)
Moral Damages
 Physical suffering
 Besmirched reputation
 Mental anguish
 Fright
 Moral shock
 Social humiliation
 Serious Anxiety
 Wounded Feelings
Exemplary Damages
 Corrective damage

 Imposed by way of example or as a deterrent to serious


 No proof of pecuniary loss is necessary.

Nominal Damages
 Adjudicated in order that the right of the plaintiff, which
has been violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by him.
Temperate Damages
 More than nominal but less than compensatory
 Pecuniary loss has been suffered but amount cannot be
proved with certainty
Actual Damages
 Damages that are recoverable because of pecuniary loss
whether it be from business, trade, property, profession,
job, or occupation.

 It includes:
 The value of the loss suffered (daño emergente);
 Profits not obtained or realized (lucro cessante).
Liquidated Damages
 Those agreed upon by parties to a contract in case of
breach thereof.

 If intended as a penalty in obligations with a penal

clause, proof of actual damages suffered by the creditor
is not necessary in order that the penalty may be
- end -