TORTS - Unlawful violation of a private right private or civil wrong Liabilities: Intentional Torts negligence Strict Liability Catch all provision Article 19,20,21 NCC Purposes of Tort Law: 1. To provide peaceful means for adjusting rights of parties 2. To Encourage socially responsible behavior 3. To restore injured parties to their original condition.
TORTS - Unlawful violation of a private right private or civil wrong Liabilities: Intentional Torts negligence Strict Liability Catch all provision Article 19,20,21 NCC Purposes of Tort Law: 1. To provide peaceful means for adjusting rights of parties 2. To Encourage socially responsible behavior 3. To restore injured parties to their original condition.
TORTS - Unlawful violation of a private right private or civil wrong Liabilities: Intentional Torts negligence Strict Liability Catch all provision Article 19,20,21 NCC Purposes of Tort Law: 1. To provide peaceful means for adjusting rights of parties 2. To Encourage socially responsible behavior 3. To restore injured parties to their original condition.
Tort - Unlawful violation of a private right Private or civil wrong
Kinds of Tort Liabilities:
Intentional Torts Negligence Strict Liability
Catch all provision Article 19,20,21 NCC
Purposes of Tort Law:
1. To provide peaceful means for adjusting rights of parties 2. Deter wrongful conduct 3. Encourage socially responsible behavior 4. To restore injured parties to their original condition
Obligation arises from breach of duty to society as imposed by law.
Article 2176 Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called quasi delict and is governed by the provisions of this chapter
Requisites of Quasi- delict
1. An act or omission constituting fault or negligence 2. Damage caused by said act or omission 3. Causal relation between the damage and the act or omission
Criminal negligence = Ex Delicto (governed by Art 365 of the RPC)
Requisites: 1. The offender does or fails to do an act 2. The doing or failure is voluntary 3. It is without malice 4. The material damage results from reckless imprudence 5. There is inexcusable lack of precaution on the part of the offender
Contractual obligation = Culpa Contractual
Obligation arises from breach of contract. Governed by Article 1170 to 1174 of the NCC also in relation to Article 2178. (the conceptual framework of negligence is the same in contract as well as in quasi delict)
Concept of Negligence
Article 1173 The fault or negligence of the obligor consists in the omission of that diligence which is requires by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201 paragraph 2, shall apply
If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 2
Jurisprudential definitions of negligence:
1. The doing or not doing of something that a reasonable prudent man would or would not do 2. Failure to observe for the protection of the interest of another person. 3. Want of care required by the circumstances. 4. Conduct which creates undue risk of harm to others
UNDUE RISK reasonably foreseeable risk Extraordinary risk requires Extraordinary care Negligence is conduct, Even if he actor believed that he exercised proper diligence, he will still be liable if his conduct did not correspond to what a reasonable man would have done under the same circumstances. TEST OF NEGLIGENCE in the PHILIPPINES a. Cost of precaution b. Circumstances of the case c. Circumstances of the statute Circumstances to consider in determining Negligence: a. Time - time of the day may affect the diligence required of the actor b. Place - place may affect the diligence required c. Emergency rule an actor confronted with an emergency is not to be held up to the standard of conduct normally applied.(provided the actor did not cause the emergency) d. Gravity of harm to be avoided if the circumstances poses harm, regardless of its gravity, proper diligence is still required. e. Alternative Course of action the gravity that may result if the actor took the alternative course of action in a given circumstance f. Social Value or Utility of Activity the diligence and assumption of risk involved may vary depending on the importance or social value of the act. g. Persons exposed to the risk The character of the person exposed to the risk is also a circumstance which should be considered in determining negligence. Children- the law imposes a higher degree of diligence over children STANDARD OF CONDUCT : GOOD FATHER OF THE FAMILY reasonable conduct of a man with an ordinary intelligence and prudence. Child -this conduct would be subjective to a child depending on the circumstance, in our jurisdiction, a person under 9 years of age is conclusively presumed to have acted without discernment, The child, as defined in our penal law, may only be held civilly liable. Physically disabled persons must act in a way that a reasonable and prudent disabled person would do. Expert and professional An expert should exhibit the care and skill of one ordinarily skilled in the particular field that he is in.
NATURE OF ACTIVITY - is also considered in determining negligence, the nature of the act, in its default, is considered.
INTOXICATION one of the circumstances to prove negligence.
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INSANITY - also adjudged according to the standard test of a reasonable man
STANDARD vs SPECIFIC rules Standards are flexible, context sensitive legal norms that require evaluative judgments in their application while Rules are formal and mechanical.
Other factors to consider in determining negligence:
VIOLATION OF STATUTES AND ORDINANCES
A. Negligence Per se negligence of the law B. Violation gives rise to presumption in Motor Vehicle Mishaps (prima facie)Art.2184 and art.2185is done may be
PROXIMATE CAUSE is indispensable in quasi- delict cases
PRACTICE and CUSTOM what usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not
COMPLIANCE WITH RULES AND STATUTES One cannot avoid a charge of negligence by showing that the act or omission complained of was of itself lawful or not violative of any statute or ordinance.
DEGREES of DILIGENCE:
a. Extraordinary Diligence b. Ordinary Diligence (Good father of a family)
DEGREES of NEGLIGENCE
a. Gross Negligence b. Simple Negligence PROOF OF NEGLIGENCE the one who alleges negligence must prove the same unless the case when negligence is presumed.
Presumptive Negligence:
a. RES IPSA LOQUITUR the thing speaks for itself The doctrine gives a prima facie case for plaintiff against defendant.
Requisites: 1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence. 2. It is caused by an instrumentality within the exclusive control of the defendant 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated
b. Presumptions by the New Civil Code: 1. Art 2184, Art 2185 and Art 2188
c. Contractual Relationship -(carrier and passenger relationship)
AFFIRMATIVE DUTIES
There is no general positive duty of care towards others, but there is a negative duty of care.
MISFEASANCE breach of general duty. (being negligent is misfeasance)
NONFEASANCE breach of affirmative duties. KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 4
(omission of an act that would benefit and avoid damage to others) DUTY to RESCUE not an affirmative duty imposed by law.(Prudence over Charity)
Liability might actually reduce the number of altruistic responses by depriving people of credit for altruism. People would be deterred by threat of liability from putting themselves in a position where they might be called upon to attempt a rescue.
EXECPTIONS: a. ART 275 of the RPC (abandonment of persons in danger and abandonment of ones victim) b. RA 4136 Land Transportation and Traffic code, Sec. 55 Duty of Driver in case of accident.
OWNERS, PROPRIETORS and POSSERSORS
Duty of care or liability to: a. Trespassers the owner does not have to take a reasonable care towards a trespassers or even protect him from concealed danger.
b. Tolerated Possessor - The owner is liable if the plaintiff is inside his property by tolerance or by implied permission.
c. Visitors the owner has a duty to care for visitors inside his premises. d. Passengers the common carriers owe duty of care to its passengers who stay in their premises even if they are not passengers.
CHILDREN and ATTRACTIVE NUISANCE RULE - an owner is liable if he maintains in his premises dangerous instrumentalities or appliances of a character likely to lure children in play and he fails to exerciser ordinary care to prevent children of tender age from playing therewith or resorting thereto, even if the child is a trespasser. Example of attractive nuisance: Railway turntables, explosives, electrical conduits, smoldering fires and rickety structures.
STATE OF NECESSITY The owner of a thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the interference is much greater. The owner may demand from the person benefited indemnity for the damage to him (Article 432 of the NCC)
LIABILITY TO NEIGHBORS and THIRDS PERSONS
Art. 431. NCC The owner of the thing cannot make use thereof in such a manner as to injure the rights of a third person.
LIABILITY OF PROPRIETORS OF BUILDINGS
Art.2190. NCC The proprietor of the building or structure is responsible for the damages resulting from its partial collapse, if it should be due to the lack of necessary repairs.
EMPLOYERS and EMPLOYEE The employers has a duty for the proper maintenance of the work place of its employee
The employees are bound to exercise due care in the performance of their functions for the employers.
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MALPRACTICE
Medical Malpractice is a particular form of negligence which consists in the failure of a 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.
Elements of medical malpractice: a. Duty b. Breach c. Injury d. Proximate Causation
Medical Negligence cases are best proved by opinions of expert belonging in the same general neighborhood and in the same general line of practice as defendant physician or surgeon.
DOCTORS/GENERAL PRACTITIONERS
A physician is under a duty to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases.
GENERAL PRACTITIONERS v. SPECIALIST
General practitioners are bound to exercise due care and diligence like an average general practitioner would do in a particular situation.
NATIONAL STANDARDS
Each physician may with reason and fairness be expected to possess or have reasonable access to such medical knowledge as is commonly possessed or reasonably available to competent physician in the same specialty or general field of practice in the Philippines.
DOCTORS ARE NOT WARRANTORS
Physicians are not warrantors of cures or insurers against personal injuries or death of the patient.
Doctors are not liable to patients if proximate cause of the injury was not due to the fault of the doctor but due to other circumstances.
BURDEN OF PROOF
The burden of proving the negligence of the doctors rests on the plaintiff who alleges such negligence. Courts defer to the expert opinion of qualified physicians because of the courts realization that the qualified physicians possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating.
RES IPSA LOQUITUR
Res ipsa loquitur can also be relied upon on medical malpractice cases, though it is restricted to situations where a layman is able to say, as a matter of consequences of professional care were not as such as would ordinarily have followed if due care had been exercised.
LOST CHANCE RULE
When a plaintiff prays for damages for lost chance, the essence of the plaintiffs claim is that prior to negligence, there was a chance that he would have been better off with adequate care. Because of the negligence, this chance has been lost. Loss of chance is the lost opportunity for better result.
DOCTRINE OF INFORMED CONSENT
The doctor must secure the consent of his patient to a particular treatment or an investigative procedure. Consent is an integral part of the physician-patient relationship and KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 6
doctors are duty bound to obtain authorization for care carried out in their offices or elsewhere. However, consent of the patient may be express or implied.
Elements to be held liable to the doctrine of Informed Consent
a. The physician has a duty to disclose material risks b. The physician failed to disclose or inadequately disclosed those risks c. As a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to, and; d. The plaintiff was injured by the proposed treatment
CAPTAIN OF THE SHIP DOCTRINE
The doctor has the responsibility to see to it that those under him perform the task in the proper manner.
The surgeon is likened to a ship captain who must not only be responsible for the safety of the crew but also of the passenger of the vessel.
LIABILITY OF HOSPITALS
The liability of hospitals to the acts of its doctors must first presuppose an employer- employee relationship between the doctor and hospital.
DOCTRINE OF CORPORATE RESPONSIBILITY
Regardless of its relationship with the doctor, the hospital may be held directly liable to the patient for its own negligence or failure to follow established standard of conduct to which it should conform as a corporation.
A hospital conducted for private gain is under a duty to exercise ordinary care in furnishing its patients a suitable and safe place.
LIABILITY FOR UNLAWFUL RESTRAINT
If the patient chooses to abscond or leave without the consent of the hospital may nonetheless register its protest and may choose to pursue the legal remedies available under the law, provided that the hospital may not physically detain the patient, unless the case falls under the exceptions above stated.
NURSES
Section 28 of RA 9173 expressly provides that a nurse must uphold the standards of safe nursing practice. The standard is national standard.
Examples of negligence of nurses:
a. Medication error b. Burns of patients c. Assessment and Monitoring Errors d. Leaving Foreign Objects e. Failure to protect the patient
The hospital is vicariously liable as an employer of the nurse under Art.2180. of the NCC
PHARMACISTS
Pharmacists are bound to observe the highest degree of care of diligence, for their profession involves dispensing of medicines which the public safety is concerned.
The doctrine of Res Ipsa Loquitur applies in negligence of pharmacists. Proof of a mistake or inadvertence upon the part of the druggist furnishes an inference sufficient to establish a prima facie case. It raises a presumption of negligence against defendant.
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NEGLIGENCE of LAWYERS
Prone to err like any other human being, he is not answerable to every error or mistake, and will be protected as long as he acts honestly and in good faith to the best of his skill and knowledge.
Proof of Damage is Necessary
ACCOUNTANT
The standard required is of an ordinary accountant with skills and knowledge in the field.
Proof of Damage is Necessary
NEGLIGENCE OF SELECTED BUSINESS ORGANIZATIONS
Schools and administrators
The liability of schools, due to its negligence, may be based on contract or quasi-delict. a. Based on contract The school must ensure that adequate steps are taken to maintain peace and order within the campus premises and to prevent the breakdown thereof. b. Based on Quasi-delict In the Absence of a contract the school may be held liable as an employer under Article 2176
BANKS
A Bank is under obligation to treat the accounts of its depositors with meticulous care. The stability of banks largely depends on the confidence of the people in the honesty and efficiency of banks. FIREARMS DEALER
A business dealing with dangerous weapon requires the exercise of a higher degree of care. A gun storeowner is presumed to be knowledgeable about firearms safety and should know never to keep a loaded weapon in his store to avoid unreasonable risk of harm or injury to others.
SECURITY AGENCY AND GUARDS
The guard and his security agency are liable for the formers negligence in handling his firearms.
RESORT AND SWIMMING POOL OPERATOR
The rule is well-settled that the owners of resorts to which people generally are expressly or by implication invited are legally bound to exercise ordinary care and prudence in the management and maintenance of such resorts, to the end of making them reasonably safe for visitors.
THEATER
Due diligence is required because it serves the public.
ELECTRIC AND POWER COMPANIES
Electric companies are liable for illegal disconnection of electrical lines or termination of their services without complying with legal requirements. The cases discussed hereunder involve liability for quasi-delict : a. Burning wires b. Sagging and Dangling Lines c. Dangerous place of installation and Uninsulated Wires
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BUILDING CONTRACTORS
a. Contractual Obligations
Contractors of buildings are contractually bound to the owners of buildings that they are constructing. In relation to contractual obligation, The New Civil Code provides a warranty against collapse of the building under Article 1723 which provides
Art. 1723 The engineer or architect who drew up the plans and specifications for a building is liable for damages if within fifteen years from the completion of the structure, the same should collapse by reason of a defect in those plans and specifications, or due to the defects in the construction or the use of materials of inferior quality furnished by him, or due to any violation of the terms of the contract. If the engineer or architect supervises the construction, he shall be solidarily liable with the contractor. Acceptance of the building, after completion, does not imply waiver of any of the cause of action by reason of any defect mentioned in the preceding paragraph The action must be brought within ten hears following the collapse of the building.
b. Liability for quasi-delict to the owner
The defect in the building may be a design defect or a construction defect. The third person suffering damages may proceed only against the engineer or architect or contractor in accordance with the said article, within the period therein fixed. The damage must be due to the negligence of the Contractor.
c. Liability to third persons
Article 1728 of the new civil code provides that the contractor is liable for all the claims of laborers and others employed by him, and of third persons for death or physical injuries during the construction. It follows, however, that the contractor is liable for injuries that occur after the construction of the building caused b y the negligent construction of the building. Privity is dispensable.
Approval of Plans by building official or City Engineer cannot prove the non-existence of defects in the construction
TOWAGE
The party that provides the service in a contract of towage is required to observe the due diligence of good father of a family.
STEVEDORING
The party that provides this service is required to observe the due diligence of good father of a family.
COMMON CARRIERS
Common carriers, from the nature of their business and for the reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of passengers.
The presumption is that the common carrier have been at fault or have acted negligently in case of death or injuries to passengers based on Contractual obligation. The presumption does not apply if the action is one based on quasi- delict, (passengers or third persons who may be injured thereby)
The duty to exercise extraordinary diligence of common carriers is usually owed to persons with whom he has contractual relation, that is, the passenger and the shipper of goods.
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TRAINS
The duty of care of train operators extends not only to passenger but also to third persons. Thus, train operators must exercise due diligence not only in the performance of its contractual duties but also in the maintenance of its facilities and equipment.
DEFENSE IN NEGLIGENCE CASES
Defenses in negligence cases may either be PARTIAL or COMPLETE defense, defense that may either mitigate or bar recovery.
PARTIAL DEFENSE
a. Plaintiffs own negligence 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
b. Contributory Negligence contributory negligence can reduce or mitigate the damages that the plaintiff may recover.
There is contributory negligence when the partys act showed lack of ordinary care and foresight that such act could cause harm or put his life in danger.
c. Imputed Contributory Negligence Negligence is imputed if the actor is different from the person who is being made liable.
COMPLETE DEFENSE
1. Assumption of Risk Requisites: 1. The plaintiff must know the risk is present 2. He must further understand its nature 3. His choice to incur it is free and voluntary There are Express and Implied waiver of right to recover.
a. Contractual Relations There may be implied assumption of risk if the plaintiff entered into a relation with the defendant.
b. Dangerous Activities or Dangerous Condition Persons who voluntarily participate in dangerous activities or condition assume risks which are usually present in such activities or condition
c. Defendants negligence Situations wherein the plaintiff is aware of the risk created by defendants negligence.
2. Fortuitous events Article 1174 NCC Except in cases expressly provided by law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which, could not be foreseen, or which, though foreseen, were inevitable.
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Elements of Fortuitous Event:
a. The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will b. It must be impossible to foresee, or if it can be foreseen it must be impossible to avoid c. The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner d. The obligor must be free from any participation in the aggravation of the injury resulting to the creditor.
3. PRESCRIPTION -The prescriptive period for quasi-delict is four years counted from the date of the accident.
4. INVOLUNTARINESS Defendant is not liable if force was exerted to him.
DEATH OF DEFENDANT
The death of defendant will not extinguish the obligation based on quasi-delict. The case will continue through the legal representative who will substitute the deceased.
CAUSATION
PROXIMATE CAUSE
Proximate cause is defined as 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.
DISTINGUISHED FROM REMOTE CAUSE
Remote cause- that cause which some independent force merely took advantage of to accomplish something not that natural effect thereof. A remote cause cannot be considered the legal cause of damage. Not all causes that occur before the damages can be considered proximate.
Distinguished from Nearest Cause
Proximate cause is not necessarily the nearest cause. It is not necessarily the last link in the chain of events but that which is the procuring efficient and predominant cause.
Concurrent Causes
The proximate cause is not necessarily the sole cause of the accident. The defendant is still liable in case there are concurrent causes brought about by acts or omissions of third persons. The actor is not protected from liability even if the active and substantially simultaneous operation of the effects of a third persons innocent, tortious or criminal act is also a substantial factor in bringing about the harm so long as the actors negligent conduct actively and continuously operate to bring about harm to another.
Art. 2194. The responsibility of two or more persons who are liable for quasi-delict is solidary. (n)
Plaintiffs Negligence as Concurrent Proximate Cause
The plaintiff cannot recover if the negligence of both the plaintiff and the defendant can be considered the concurrent proximate cause of the injury. This ruling on concurrent proximate cause is consistent with Article 2179 of the New Civil Code that provides that the plaintiff cannot recover if his KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 11
negligent act or omission is the proximate cause of his damage or injury.
Proof of Causation
There must be proof of the causal connection before the alleged tortfeasor may be made liable. Possibility is not an actual fact, probability is not certainty, and certainty requires proof.
Tests of Proximate Cause
Quasi-delictual actions involve three requirements: 1. negligence 2. damage 3. the causal connection between the damage and the negligent act or omission
In other words, proof of negligence and damage is not enough. It is still required that the plaintiff presents proof that the proximate cause of the damage to the plaintiff is negligent act or omission of the defendant. It was observed that proximate cause is determined by the facts of each case upon mixed considerations of logic, common sense, policy and precedent
CAUSE-IN-FACT AND POLICY TESTS
In determining the proximate cause of the injury, it is first necessary to determine if the defendants negligence was the cause-in-fact of the damage to the plaintiff. If it was not a cause-in-fact, the inquiry stops; but if it is a cause-in-fact, the inquiry shifts to the question of limit of liability of the defendant. The latter determination of the extent of liability involves a question of policy.
Holding and Rule (Cardozo Zone of Danger rule): A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances. A defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger. Different Cause-In-Fact Tests
The initial step in determining proximate cause is to determine if the negligent act or omission of the defendant is the cause-in-fact of plaintiffs damage or injury.
Under the rubric of cause-in-fact, courts address generally the empirical question of causal connection. It is necessary that there is proof that the defendants conduct is a factor in causing a plaintiffs damage. What needs to be determined is whether the defendants act or omission is a causally relevant factor.
SINE QUA NON TEST
The basic conception of the cause is the alternative definition of David Hume in Inquiry on Human Understanding. He said: Or in other words, where if the first object had not been, the second never had existed. This concept is the foundation of what is known as the but-for test.
SUBSTANTIAL FACTOR TEST
The substantial factor test makes the negligent conduct the cause in fact of the damage if it was a substantial factor in producing the injuries. KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 12
In order to be a substantial factor in producing the harm, the causes set in motion by defendant must continue until the moment of the damage or at least down the setting in motion of the final active injurious force which immediately produced or preceded the damage.
NECESSARY ELEMENT OF SUFFICIENT SET (NESS) TEST
The NESS test is especially effective in solving problems regarding concurrent causes. Under this test, the negligent act or omission is a cause-in-fact of the damage if it is a necessary element of a sufficient set. The test is based on the concept of causation by Hume and Mill, and systematically elaborated for legal purposes by Professors Hart and Honore in Causation in Law and Professor Wright in Causation in Tort Law.
There are two ways by which co-presence may manifest itself:
a. Duplicative causation When two or more sets operate simultaneously to produce the effect; the effect is over- determined.
b. Pre-emptive causation When, though coming about first in time, one causal set trumps another potential set lurking in the background; the causal potency of the latter is frustrated.
FIRST STAGE ONLY
The first stage of causation is primarily a matter of historical mechanics although it necessarily involves the questions about what would have happened in different circumstances.
Policy Tests
Foreseeability test
Negligence involves a foreseeable risk, a threatened danger or injury and conduct unreasonable in proportion to danger.
Natural and probable consequence test
This test is designed to limit the liability of a negligent actor by holding him responsible only for injuries which are the probable consequences of his conduct as distinguished from consequences that are merely possible. For this purpose, the term probable is used in the sense of foreseeable
Ordinary and natural or direct consequences
This test states that, as a matter of legal policy, if negligence is a cause in fact of the injury under the criteria previously discussed, the liability of the wrongdoer extends to all the injurious consequences
Hindsight test
The hindsight test eliminates foreseeability as an element.
A party guilty of negligence or omission of duty is responsible for all the consequences which a prudent and experienced party, fully acquainted with all the circumstances which in fact exist, whether they could have been ascertained by reasonable diligence, or not, would have thought at the time of the negligent act as reasonably possible to follow, if they had been suggested to his mind.
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Orbit of the risk test
This was intended to be a test of duty and not a test of proximate cause.
If the foreseeable risk to plaintiff created a duty which the defendant breached, liability is imposed for any resulting injury within the orbit or scope of such injury, it is not the unusual nature of the of the act resulting in injury to plaintiff that is the test of foreseeability but whether the result of the act is within the ambit of the hazards covered by the duty imposed upon the defendant.
Tests in the Philippines
The New Civil Code has a chapter on Damages which specifies the kind of damage for which the defendant may be held liable and the extent of damage to be awarded to the plaintiff. Applicable Cause-In-Fact Test in the Philippines - But-for Test/ Sine Qua Non Test o Concurrent causes o Sufficient Combined causes - Substantial Factor Test - Ness Test Sine Qua Non Test
Concurrent causes Where two separate acts of negligence combine to cause an injury to a third party, each actor is liable. Sufficient combined causes Where an injury results from two separate acts of negligence, either of which would have been sufficient to cause the injury, both actors are liable
Applicable Policy Tests in the Philippines 1) Policy Test under the 1889 Civil Code 2) Rule under the New Civil Code Article. 2202. In crimes and quasi-delicts, the defendant shall be liable for all the damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably been foreseen by the defendant. The rule in contracts is different from the rule in quasi-delict if the person sought to be held liable ex contractu acted in good faith. Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those that are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted.In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation. (1107a) Natural and Probable under Article 2202 involves causality and adequacy
Types of Dangerous Conditions 1. Those that are inherently dangerous 2. Those where a person places a thing which is not dangerous in itself, in a dangerous position; and 3. Those involving products and other things which are dangerous because they are defective. KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 14
EGG-SKULL or THIN SKULL Rule It increases the liability of a person who may commit a tort against another, from results arising out of those tortuous acts. Efficient and Intervening Cause (Novus Actus Interviens) An efficient intervening cause is the new and independent act which itself is a proximate cause of an injury and which breaks the causal connection between the original wrong and the injury Medical Treatment as Intervening Cause. A tortfeasor is liable for the consequence of negligence, mistake, or lack of skill of a physician or surgeon whose treatment aggravated the original injury. Unforeseen or Unexpected Act or Cause An unforeseen and unexpected act of a third person may not therefore be considered efficient intervening cause if it is duplicative in nature or if it merely aggravated the injury that resulted because of a prior Contributory Negligence PLAINTIFFs NEGLIGENCE IS THE CAUSE In this situation defendants act or omission is not causally relevant; it is neither necessary nor sufficient to cause damage or injury. This situation may include when only the plaintiff was negligent while the defendant is not negligent or defendants negligence is not part of the causal set.
COMPOUND CAUSES In this situation, the plaintiffs negligence occurs simultaneously with that of the defendant. The latters negligence is equally sufficient but not necessary for the effect because the damage would still have resulted due to the negligence of the plaintiff. In this case, no recovery can be had. The plaintiffs negligence is not merely contributory because it is concurring proximate cause PART OF THE SAME CAUSAL SET In this situation, the plaintiffs negligence, together with the defendants is part of the same causal set. Plaintiffs negligence is not sufficient to cause the injury while defendants negligence is also not equally sufficient. The effect would result only if both are present together with normal background conditions. The effect would not have resulted without the concurrence of all of them. DEFENDANTS NEGLIGENCE IS THE ONLY CAUSE. In this situation the defendants negligence may be sufficient and necessary to cause the damage and plaintiffs act or omission is neither necessary nor sufficient. Damage to the plaintiff was solely the result of the defendants negligence. However, the plaintiffs negligence may have Doctrine of the Last Clear Chance Alternative Views on last Clear Chance Prevailing View The Supreme Court ruled that even if the plaintiff was guilty of antecedent negligence, the defendant is still liable because he had the last clear chance of KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 15
avoiding injury. The law is that the person who has the last fair chance to avoid the impending harm and fails to do is chargeable with the consequences HUMAN RELATIONS: INTENTIONAL TORTS
This chapter and the next two chapters deal with torts covered by chapter 2 of the preliminary title of the new civil code of the Philippines entitled human relations.
CONCEPT OF INTENT IN TORT
INTENT -- the actor desires to cause the consequences of his act or believes the consequences are substantially certain to result from it. (Blacks Law Dictionary; Same def. - Section 8 of Restatement (Second) of Torts.)
Represents the common usage with the ff. Elements:
(1)State of mind; (2) about consequences of an act and not about the act itself, and (3) it extends not only to having in mind the purpose but also the belief that given consequences are substantially certain to result from the act. (Prosser and Keeton)
MEANS EMPLOYED ACT ITSELF IS INCLUDED IN INTENT
The end may not be wrongful under normal circumstances but the wrongful means employed makes it wrongful. Intentional tort likewise includes cases of this nature.
Distinguished from negligence
Involves foreseeablility of risk not certainty of harm; involves knowledge which is short of substantial certainty; hence, distinction is a matter of degree.
Manifestation of Intent
Appears by way of malice, bad faith or fraud.
Specific Content of Intent: May be content specific in some tort cases. For example, in the tort of malicious prosecution inexcusable intent to injure, vex, oppress on the part of the private prosecutor while malice in the sense of ill-will is not essential in the interference of a contract.
CATCH ALL PROVISIONS:
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 damages.
Art. 19 Abuse of Rights
A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible.
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The elements of an abuse of right /cause of action under Article 19 are the following
(1) There is a legal right or duty; (2) Which is exercised in bad faith; (3) For the sole intent of prejudicing or injuring another.
No Wrong Without A Remedy : Under Article 21, damages are recoverable even though no positive law was violated. Damage Essential Element of Cause of Action: An action can only prosper when the plaintiff suffers damage, material or otherwise. For instance, an action based on Article 19, 20 and 21 will be dismissed if the plaintiff merely seeks recognition.
Good Faith Not Necessarily an Excuse: The Supreme Court ruled that the defendant may likewise be guilty of tort under Article 19 and 21 even if tortfeasor did not act with ill-will. Liability to pay exemplary damages may not be imposed on the defendant who acted in good faith.
CONCEPT OF ABUSE OF RIGHT
The rule allowing recovery for abuse of right is a departure from the traditional view that a person is not liable for damages resulting from the exercise of one's right-qui jure suo utitur neminem laedit. A person is protected only if he acts in legitimate exercise of his right with prudence and good faith.
EXAMPLES OF CASES WHEN THERE IS ABUSE OF RIGHT.
There is no rigid test that can be applied in determining whether or not the principle of abuse of rights may be invoked.
A.Abuse of Rights of Creditors
Taking advantage of his knowledge that insolvency proceedings were to be instituted by the debtor if the creditors did not come to an understanding as to the manner of distribution of the insolvent's asset among them, and believing it most probable that they would not arrive at such understanding---schemed and transferred its credit to a sister company in the United States which, in turn, secured a writ of attachment in the court therein thereby gaining control over the said plane. As a consequence, the other creditors was deprived of their lawful share thereto and the assignee that was later appointed was deprived of his right to recover the plane.
B. Abuse of Right of Principal
There is abuse of right if the principal unreasonably terminated an agency agreement for selfish reasons. Even if the agency can be terminated at will, termination should not be done with bad faith or abuse of right.
C. Abuse of Right of Agents
Agents violation of the trust reposed on them as officers and negotiators in behalf of the tenants.
D. Abuse of Right of Public Officers
The abuse of right committed by a superior officer in preventing a subordinate from doing her assigned task from being officially recognized for it.
E. Abuse of Court Processes
Respondents would not have suffered the loss that engendered the suit before the RTC. Verily, his acts constituted not only an abuse of a right, but an invali d exercise of a right that had been suspended when he KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 17
received the TRO from this Court on June 4, 1986.
F. Abuse of Right by Contracting Parties
The agreement was for the immediate payment of the outstanding account. A check is not considered as cash especially when it i s postdated sent to BPI. Thus, the issuance of the postdated check was not ef f ec t i ve payment . BPI was t her ef or e j us t i f i ed i n suspending his credit card. BPI did not capriciously and arbitrarily canceled the use of the card.
G. Abuse of Rights of Schools
UE had a contractual obligation to inform his students a s t o w h e t h e r o r n o t t h e y h a v e m e t a l l t h e requirements for the conferment of a degree. Thus, UE in belatedly informing respondent of the result of the removal examination, particularly at a time when he had already commenced preparing for the bar exams, cannot be said to have acted in good faith.
EXAMPLES OF CASES WHEN THERE IS NO ABUSE OF RIGHT
Exercise of a right in good faith does not generally justify the filing of an action for damages. Even if inconvenience results, no action for damages will, as a rule, prosper.
A.Absolute rights can never be the basis of liability.
Example: The refusal to enter into a contract is an absolute right and courts cannot inquire into the motive in refusing to enter into a contracts. Hence, refusal to enter into a contract, bu itself, cannot be a ground for the filing of an action for damages.
B. Rights of the Corporation and its Officers and Directors
The court rules that the ending of demand letters by non-stock corporation to its member for the payment unpaid charges cannot be considered abuse of right if the tenor of letters do not deviate from the standard practice of pursuing the satisfaction of the obligation of the member. The non-stock corporation, which is an exclusive organization, primarily derives its life from membership fees and charges and the corporation is expected to enforce claims against members.
C. Exercise of Rights Included in Ownership
There is no abuse of right when an owner of a lot that adjoins the highway fenced his property. No abuse of right was committed although the tenants in the inner lot ca no longer pass through his property. In the absence of an easement of right of way, the owner is free to enclose his property even if damage to another will result. It is a case of damage without injury. The proper exercise of a lawful right cannot constitute a legal wrong for which an action will lie, although the act may result in damage to another, for no legal right has been invaded. reasonably calculated to achieve a lawful means.
D. Rights of Schools, Teachers and Administrator.
There is no abuse of right if the defendants are legitimately exercising their constitutional rights. The majority of the directors of a school reinstated a teacher who was previously terminated from service. Later, the President,Vice-President, Secretary and three board members resigned because of such action.
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E. Right to Sue
In this case, bad faith on the part of Phelps was not pr oved. Mor e i mpor t ant l y , Phel ps was dr i ven by legitimate reasons for rejecting Barons offer. It merely wanted to avoid a situation wherein its cash position woul d be compromised, making it harder for them to pay its own obligations. Cl ear l y, t hi s ( t he r eques t of Bar ons ) woul d be inimical to the interests of any enterprise, especially a profit-oriented one like Phelps. It is plain to see that what we have here i s a mere exercise of ri ghts, not an abuse thereof.
F. Contracting Parties
When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible. Article 21 states that 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. Without proof of any ill-motive on her part, Ms. Lims act cannot amount to abusive conduct. The maxim Volenti Non Fit Injuria (self- inflicted injury) was upheld by the Court, that is, to which a person assents is not esteemed in law as injury, that consent to injury precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger.
III- Acts Contra Bonos Mores
GENERAL CONCEPT
Acts Contra Bonos Mores - Harmful to the moral welfare of the society.
The Following Elements of Acts Contra Bonos Mores:
1. There is an act which is legal. 2. The act is contrary to morals, good customs, public order, public policy, and 3. The act is done with intent to injure.
Article 19: Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, observe honesty and good faith. Article 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.
Note: Article 21 of the Civil Code further expands torts in this jurisdiction. And its a provision that fleshes out the principles expressed in Article 19.
Broad Coverage
There is no formula that can be used to determine what is contrary to morals. Neither is there any formula to establish what is good custom or what is consistent with public order or public policy.
In many cases, breach is self evident especially if there is fraud, oppression, deceit, abuse of power or confidence and other human follies.
Rationale Article 21 may also be justified by these words of Eugen Huber author of the Swiss Civil Code of 1907 Moral Law has in law such a penetrating and valuable significance that we cannot speak of positive law without referring to moral law. The Moral Law and the law of the State have the same object and purpose, and together they govern human aims and conduct, which constitute human society itself.
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Breach Of Promise to Marry
General Rule Breach of promise to marry by itself is not actionable. However it become actionable if there are additional circumstances that make it fall within the purview of article 19 20-21 or 2176 of the new civil code
In such cases there is another act independent of the breach of promise to marry which gives rise to liability.
These include cases where 1. There was financial damage 2. Social humiliation was caused to one of the parties. 3. Where there was moral seduction.
An action is also warranted if the defendant and the plaintiff formally set the wedding and went through all the preparations and publicity but the defendant walked out of it when the matrimony was about to be solemnized.
A civil case for damages may also prosper if there is seduction. Seduction may be criminal or mere moral seduction. Moral seduction although not punishable, connotes essentially the idea of deceit, enticement, superior power or abuse of confidence on the part of the seducer to which the woman has yielded.
The action may prosper if the breach was done in such a manner that is clearly contrary to good morals.
The acts of petitioner in forcibly abducting private respondent and having carnal knowledge with her against her will, and thereafter promising to marry her in order to escape criminal liability, only to thereafter renege on such promise after cohabiting with her for 21 days. Irremissibly constitutes acts contrary to morals and good customs. These are grossly insensate and reprehensible transgressions which indisputably warrant and abundantly justify the award of moral and exemplary damages pursuant to article 21 in relation to paragraph 3 and 10 article 2219 and 2229 2234 of the civil code.
The Supreme Court explained that the action for damages for breach of promise to marry will prosper if there is fraud
Pari Delicto Rule When Inapplicable
The In Pari Delicto Rule does not apply in breach of promise to marry cases where the defendant is guilty of moral seduction. Pari Delicto means equal fault; in a similar offense or crime;equal in guilt or in legal fault.
Seduction and Sexual Assault Seduction by itself, without breach of promise to marry is also an act that is contrary to morals, good customs, and public policy.
Desertion by a Spouse
A spouse has a legal obligation to live with his or her spouse. If a spouse does not perform his or her duty to the other, he may be held liable for damages for such omission because the same is contrary to law, morals and good customs.
Trespass to and / or Deprivation of Real Property
trespass to real property is a tort that is committed when a person unlawfully invades the real property of another.
There is authority for view however that the tort of trespass may be committed even in good faith ( Republic of the Philippines vs. Hon Jaime delos Angeles ) dissenting opinion of Chief Justice Concepcion) or / Accession continua- A person in good faith is not liable but responsible.
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Trespass to Personal Property
with respect to personal property, the commission of the crimes of theft or robbery is obviously trespass. In the field of tort, however, trespass extends to all cases where a person is deprived of his personal property even in the absence of criminal liability.
It may also cover cases where the defendant deprived the plaintiff of personal property for the purpose of obtaining possession of a real property.
Disconnection of Electricity or Gas Services
A usual form of deprivation of access to property is the unjustified disconnection of electricity service.
Abortion and Wrongful Death
The Supreme Court recognized the right to recover damages against a physician who caused an abortion. Damages are available to both spouses if the abortion was caused through the physicians negligence. Both spouses may also recover damages if the abortion was done intentionally without their consent.
Illegal DISMISSAL
The sphere of application of Article 21, in relation to article 19, includes cases where there is an employer employee relationship. It is a basic rule that an employer has a right to dismiss an employee in the manner and on the grounds provided for under the Civil Code.
Malicious Prosecution, Definition and Statutory Bases
Malicious Prosecution
an action for damages brought by one against another whom a criminal prosecution, civil suit, or other legal proceedings has been instituted, maliciously and without probable cause, after the termination of such prosecution, suit or proceeding in favor of the defendant therein. The gist of the action is the putting of legal process in force regularly, for the mere purpose of vexation or injury. The Supreme Court ruled that an action for malicious prosecution will prosper only if the following elements are present: The fact of the prosecution and the further fact that the defendant was himself the prosecutor, and that the action was finally terminated with an acquittal; That in bringing the action, the prosecutor acted without probable cause; The prosecutor was actuated or impelled by legal malice.
Malice- State of mind of one who deliberately commits a wrongful act.
The prosecutor in the case is actuated by malice if he actuated by malice if he acted with Inexcusable intent to injure, oppress, vex annoy or humiliate. The presence of probable cause signifies, as a legal consequence, the absence of malice.
Probable Cause is the existence of such facts and circumstances as would excite the belief of the prosecutor that the person charged is guilty of the crime for which he is prosecuted. -The absence of malice therefore involves good faith in the part of the defendant.
Acquittal
A criminal information is filed in court and final judgment is rendered dismissing the case against the accused.
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Control by Prosecutor
The mere fact that the public prosecutor took full control of litigation does not grant immunity to persons who misuse their right to instigate criminal actions. Hence, the complainant may still be liable for malicious prosecution if the public prosecutor controlled the litigation.
Other Bases of Liability for Abuse of Process
As an alternative to malicious prosecution, a plaintiff may file an action for damages for abuse of processes under article 2176 and 26 of the New Civil Code.
Public Humiliation
The Supreme court likewise sustained award for damages in cases when the plaintiff suffered humiliation through the positive acts of the defendant directed against the plaintiff.
HUMAN DIGNITY
In this chapter, we will examine the torts that involve the right of a person to dignity, personality, privacy and peace of mind. Torts defined under Article 26 of the NCC is discussed in this chapter.
Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and other similar acts, though they may not constitute a criminal offense shall produce a cause of action for damages, prevention and other relief:
(1) Prying into the privacy of anothers residence (2) Meddling with or disturbing the private life or family relations of another (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.
Constitutional Right to Privacy
The scope of protection of the right to privacy includes the right against unreasonable searches and seizures, privacy of communications and correspondence, right against self-incrimination, right to travel and the right to form unions not contrary to law. Reasonable Expectation of Privacy Two-part test of reasonableness:
1. Whether by his conduct, the individual has exhibited an expectation of privacy
2. Whether this expectation is one that society recognizes as reasonable
The factual circumstances of the case determine the reasonableness of the expectation.
Facets of Privacy
1. Privacy in a physical sense 2. Privacy in an informational sense 3. Proprietary privacy 4. Privacy in a decisional sense
Basis of liability for Damages
Viewed as a violation of a constitutional right, violation of right to privacy makes the actor liable under article 32 of the NCC
Person entitled to relief
Only natural persons can invoke the right to privacy and the right ceases upon the death of the person. KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 22
Standard used in determining tort liability
The right to privacy is not a guaranty to hermitic seclusion. The standard to be applied in determining if there was a violation of the right is that of a person of ordinary sensibilities, relative to time and place.
Classification of tort violation of the right to privacy 1. Intrusion 2. Publication of private facts 3. Making one appear before the public in an objectionable false light 4. Commercial appropriation of likeness of another Intrusion
The tort of intrusion upon the plaintiff solitude protects a persons sense of locational and psychological privacy.
Forms of intrusions
1. Intrusion in public places On public the plaintiff has no right to be alone, and it is no invasion of his privacy to do no more than follow him about.
2. Intrusion and the freedom of the press Newsworthiness in the interest of public gauged over the individuals privacy.
3. Intrusion in Administrative Investigation No intrusion when an employer investigates its employee or when a school investigates its students.
4. Intrusion of common carriers The due diligence of common carriers in checking the baggage of its passengers should not outweigh the latters privacy.
5. Intrusion in public records No intrusion into the right of privacy of another if the information sought is a matter of public record. Public officials are mandated by law to provide public information except if the disclosure would constitute a clearly unwarranted invasion of personal privacy.
6. Intrusion through the internet there will be intrusion through the internet if a person is engaged in what is known as unlawful access, if the actor accessed an electronic file, electronic signature of an electronic data message or electronic document without the consent of the lawful possessor contemplated under section 31 of RA 8792.
Publication of Private Facts
The interest sought to be protected is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual.
Elements of this tort: 1. Publicity is given to any private or purely personal information 2. Without the latters consent 3. Regardless of whether or not such publicity constitute a criminal offense.
Publication of Public acts is also gauged in its Newsworthiness that concerns public interest over the right to privacy of the individual especially a public figure.
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False Light
The interest to be protected in this tort is the interest of the individual in not being made to appear before the public in an objectionable false light or false position. The media may commit the tort by distorting new reports. Thus, liability may result if film or videotape is edited in such a way that the plaintiff is made to appear to have committed an illegal act although he actually did not do so.
Commercial Appropriation of Likeness
The tort of commercial appropriation of likeness has been held to protect various aspects of an individuals identity from commercial exploitation: name, likeness, achievements, identifying characteristics, actual performances and fictitious characters created by a performer. It was even extended in one case to phrases and other things which are associated with an individual.
INTERFERENCE WITH FAMILY AND OTHER RELATIONS
Alienation of Affection of spouse wrongful interference in the family affairs of whereby one spouse is induced to leave the other spouse or to conduct himself or herself that the comfort of married life is destroyed.
Requirements:
1. A valid marriage 2. Wrongful conduct by the defendant with the plaintiffs spouse 3. The loss of affection or consortium 4. A causal relation between defendants conduct and the deprivation of affection.
When the alienation was caused by in-laws, there is a presumption that the interference of the in-laws are in the interest of the child. In such a case. Malice must be established, and it must appear that the defendants acts were the controlling cause of the loss of affection. The requirement of malice also applies to interference of Non-relatives.
VEXATION and HUMILIATION
The fourth paragraph of Article 26 of the NCC provides:
4. Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.
Extreme and Outrageous Conduct
Conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society.
Emotional Distress
Any highly unpleasant mental reaction such as extreme grief, shame, humiliation, embarrassment, anger, disappointment, worry, nausea, mental suffering and anguish.
Any party seeking recovery for mental anguish must prove more than mere worry, anxiety, vexation, embarrassment, or anger.
Distinguished from Defamation
Emotional distress properly belongs to the reactive harm principle while defamation calls for the application of the relational harm principle. The principle of relational harm includes harm to social relationships in the community in the form of defamation as distinguished from the principle of reactive KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 24
harm which includes injuries to individual emotional tranquility.
DISCRIMINATION
Public policy abhors discrimination.
Art.135 of the Labor code
Art. 135. Discrimination Prohibited. It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex Discriminations of disabled and women
RA 7277 Magna Carta for disabled persons RA 9710 Magna Carta for Women.
SEXUAL HARRASMENT
Another act that merits impositions of damages for being contrary to law and morals is sexual harassment.
Sexual harassment is committed whenever any of the persons mentioned in paragraph (a) above demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demands, request or requirement for submission is accepted by the object of said act
QUID PRO QUO CASES
Sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships or the payment of a stipend, allowance or other benefits, privileges or considerations.
HOSTILE ENVIRONMENT CASES
Requisites:
1. That he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of sexual nature
2. That this conduct was unwelcome
3. The conduct was sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment.
The Standard of Conduct to be observed is of an ordinary prudent man. The civil liability is based on delict.
INDEPENDENT CIVIL ACTION
A private action for damages brought by an offended party arising from culpa aquillana for the enforcement of his right in relation to Article 32,33 and 34 of the NCC.
When a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party reserves his right to institute it separately; and after a criminal action has been commenced, no civil action arising from the same offense can be prosecuted. Articles 32,33 and 34 of the New Civil Code commonly provide for the authority to file independent civil actions, this includes actions for damages for violation of civil and political rights, defamation, fraud, physical injuries and neglect of public officers.
Article 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: KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 25
(1)Freedom of religion; (2)Freedom of speech; (3)Freedom to write for the press or to maintain a periodical publication; (4)Freedom from arbitrary or illegal detention; (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 a 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 may 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.
Article 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.
Article 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
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CIVIL LIABILITY ARISING FROM DELICT
Basic rule in this jurisdiction is that every person criminally liable for a felony is also civilly liable. Civil liability arising from delict can only prosper when the act or omission is punishable by law and it causes damage to another. Public and Private offenses not material, as in the case of bigamy, a public offense.
PERSONS LIABLE:
1. Principal 2. Accomplice 3. Accessory
The amount of damages to be awarded must be apportioned according to their respective responsibilities to be paid by them solidarily within their respective class and subsidiarily for the others of a different class.
Order of preference:
1 Principals 2 Accomplice 3 Accessory
CIVIL LIABILITY ARISING FROM CRIMES INCLUDES:
RESTITUTION REPARATION INDEMNIFICATION
As provided for by Article 100 of the Revised Penal Code.
PROXIMATE CAUSE
Article 2202 of the NCC provides that in crimes and quasi-delicts the defendant shall be liable for all the natural and probable consequences of the act or omission complained of. Circumstances to be considered in awarding damages
Justifying no crime committed but there is civil liability. Except in subdivision 4 of Article 11 of the RPC
Exempting there is crime committed but the offender is exempted from punishment, but shall be civilly liable, and if the offender is under guardianship or minor the guardian or parents shall be liable for damages unless they can prove they observed due diligence.
Mitigating the courts may lower the amount considering this circumstance.
Aggravating - the courts may increase the amount considering this circumstance. This circumstance warrants the imposition of exemplary damages.
Alternative the courts shall determine the amount of damages on a case to case basis.
EXTINCTION AND SURVIVAL OF CIVIL LIABILITY
Death of the accused BEFORE final judgment extinguishes the criminal and civil liability of the accused, this is without prejudice to the right of the aggrieved party to file a claim for damages against other sources of obligation other than delict.
Civil liability is not extinguished by death of the accused AFTER final judgment.
INDEPENDENT CIVIL ACTION ARISING FROM CRIMES
If an accused is acquitted based on reasonable doubt on his guilt, his civil liability arising from crime may be proved by preponderance of evidence only. However if the accused is acquitted on the basis that he was not the author of the act or omission complained of, or there is a declaration in the final judgment that KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 27
that the fact which the civil liability might arise did not exist.
RESERVATION OF CIVIL ACTION
A civil action arising from crime is deemed instituted in the criminal action, unless the offended party reserves the right to institute a separate civil action before the prosecution presents its evidence. (Section 1. Rule 111 of the Rules of Court)
PREJUDICIAL QUESTION
A matter that may suspend the civil action that is deemed instituted with the criminal case is the presence of prejudicial question. Section 6 of Rule 111 of the Revised Rules of Criminal Procedure.
Elements of prejudicial question: (Sec.7 Rule 111, Rules of court)
a. Previously instituted civil action involves an issue similar or intimately related to the issue raised in the criminal action b. resolution of such issue determines whether or not the criminal action may proceed
Article 36 of the NCC provides that Prejudicial Questions, which must be decided before any criminal prosecution may be instituted or may proceed, shall be governed by the rules of court which the Supreme Court shall promulgate and which shall not be in conflict with the provisions of this code.
The DEFENDANTS This chapter deals with persons who may be sued for tort, particularly those who may be held liable for quasi-delict under article 2176 of the New Civil Code which states that: Art.2176 Whoever by act or omission causes damage 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 and is governed by the provisions of this Chapter. JOINT TORTFEASOR Article 2194 of the New Civil Code governs the acts or omissions of different persons which is the proximate cause of an injury, Article 2194 states that: Art.2194. The responsibility of two or ore persons who are liable for quasi-delict is solidary Article 2194 imposes a solidary obligation for the damages caused by joint tortfeasors. A Solidary obligation means that each one of the debtor is bound for the compliance of the whole obligation. In quasi-delict, Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury Who can be considered Joint Tortfeasor? a. Joint tortfeasor by cooperation Defendants may be considered joint tortfeasor if they cooperated in bringing about a result. Such cooperation may be by virtue of a written agreement.
b. CAUSAL SET in torts, it as the concurrence of two or more acts or omissions that is sufficient produce the injury, or without the other, the injury would not have occurred.
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Part of Causal Set Defendants may likewise be considered joint tortfeasor if each of their acts or omissions are part of causal set that is sufficient to cause the damage to the plaintiff.
Separate Causal Set Persons may be considered joint-tortfeasor even if they acted separately or independently. For example if the proximate cause of the injury are two causal sets, which are separately sufficient to cause the injury, both actors are liable. REIMBURSEMENT AND APPORTIONMENT OF LIABILITY The joint tortfeasor owe solidary liability to the injured party. As against the in injured party, one of the joint tortfeasor cannot claim his contribution is smaller than the contribution of the other jointfeasor. No apportionment will be made because one tortfeasor may be held liable for the entire obligation. The damages cannot be apportioned among them, except among themselves Full Payment made by one solidary debtor extinguishes the whole obligation, and the latter can reimburse to his co-debtor the share which corresponds to each, with the interest for the payment already made, pursuant to Article 1217 of the New Civil Code, likewise the insolvency of one of the joint tortfeasor shall be borne by other joint tortfeasor. Thus a joint tortfeasor who paid the entire amount of damages being claimed has the right to claim reimbursement from the other tortfeasor. One area of the law that apportions liability among tortfeasor is the liability of banks for forged signature in checks. Generally, it is the collecting bank that must bear the loss because of its warranty of the genuineness of the signature of the indorser. MOTOR VEHICLE MISHAPS Article 2184. In motor vehicle mishaps, the owner is solidary liable with his driver, if the former, who was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. Solidary liability is imposed on the owner of the vehicle not because of his imputed liability but because his own omission is a concurring proximate cause of the injury.The theory is that ultimately the negligence of the servant, if known to the master and susceptible of timely correction by him, reflects his own negligence if he fails to correct it in order to prevent injury or damage. VICARIOUS LIABILITY There is vicarious liability where a person is not only liable for torts committed by himself, but also for torts committed by others with whom he has a certain relationship and for whom he is responsible. Article 2180 to 2182 of the New Civil Code provides the central determination of vicarious liability. Art. 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 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.
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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)
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) The Revised Penal Code also provides vicarious liability arising from delict Art. 101. Rules regarding civil liability in certain cases. The exemption from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Article 11 of this Code does not include exemption from civil liability, which shall be enforced subject to the following rules: First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for acts committed by an imbecile or insane person, and by a person under nine years of age, or by one over nine but under fifteen years of age, who has acted without discernment, shall devolve upon those having such person under their legal authority or control, unless it appears that there was no fault or negligence on their part. Should there be no person having such insane, imbecile or minor under his authority, legal guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting property exempt from execution, in accordance with the civil law. Second. In cases falling within subdivision 4 of Article 11, the persons for whose benefit the harm has been prevented shall be civilly liable in proportion to the benefit which they may have received. The courts shall determine, in sound discretion, the proportionate amount for which each one shall be liable. When the respective shares cannot be equitably determined, even approximately, or when the liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events, whenever the damages have been caused with the consent of the authorities or their agents, KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 30
indemnification shall be made in the manner prescribed by special laws or regulations. Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons using violence or causing the fears shall be primarily liable and secondarily, or, if there be no such persons, those doing the act shall be liable, saving always to the latter that part of their property exempt from execution. Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of establishments. In default of the persons criminally liable, innkeepers, tavernkeepers, and any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees. Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their houses from guests lodging therein, or for the payment of the value thereof, provided that such guests shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods within the inn; and shall furthermore have followed the directions which such innkeeper or his representative may have given them with respect to the care and vigilance over such goods. No liability shall attach in case of robbery with violence against or intimidation of persons unless committed by the innkeeper's employees. Art. 103. Subsidiary civil liability of other persons. The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties.
LIABILITY of PARENTS to their unemancipated child 2 nd paragraph of Article 2180 of the New Civil Code, is now modified by Article 221 of the Family Code, which imposes responsibility to both parents without preference to the father. The liability is based on the parental authority of the parents over their minor children. The age of majority under RA 6809 which amended Article 234 of the Family Code by making 18 years as the uniform majority age for men and women. The last paragraph of Article 236 of the Family Code states that Nothing in this code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 It is resolved to mean that liability of parents subsist up until the child is 21 years old. Civil liability of parents Ex-Delicto Under RA 9344 a child 15years of age is exempted from criminal liability but the parents of such child shall be liable for damages caused by the latter. Parents are primarily liable for acts of their children who are 15 years of age and up but not more than 18 years old who acted with discernment. Parents and guardians are also primarily liable for acts of their children above 15 but under 21 years of age, pursuant to the last paragraph of Article 236 of the Family Code in relation to Article 2180 of the New Civil Code. KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 31
Parents and other persons exercising parental authority can escape liability by proving that they observed all the diligence of a good father of a family to prevent damage. The burden of proof rests on parents and persons exercising parental authority. Guardians of Incapacitated adults also exercises parental authority over the latter in relation to Articles 38 and 39 of the New Civil Code. LIABILITY OF EMPLOYERS The responsibility of employers for the negligence of their employees in the performance of their duties is primary, that is, the injured party may recover from the employers directly, regardless of the solvency of their employees. (Article 2180 of the new Civil Code 4 th and 5 th paragraph) Requisites of vicarious liability of an employer: (1) Employer-employee relationship (2) Liability for quasi-delict of the employee (3) Performance by the employee of the task assigned by the employer when damage or injury was inflicted through fault or negligence. Distinctions between the 4 th and 5 th paragraph of Article 2180 of the New Civil Code The 4 th paragraph is for owners or managers of an establishment or enterprise while the 5 th
paragraph is to employers in general, whether or not engaged in any business or industry. In Vicarious Liability of Employers it is an indispensable for a plaintiff to prove employer- employee relationship to make the employer liable for the negligence of its employee. Determination of Employer-employee Relationship Independent Contracts Borrowed Employee Rule Working Scholars Labor-Only Contracting Performance of Assigned Task
The CONTROL test is to be used in determination of the Employer-employee relationship. Under the control test, a person can still be considered another who works for him as his employee. If the person for whom the services are to be performed controls only the result or the end to be achieved, the worker is the contractor, if the former controls not only the end but also the manner and means to be used, the latter is an employee. PRESUMPTION OF NEGLIGENCE When an employee causes damage due to his own negligence while performing his own duties, there arises a presumption that his employer is negligent. The employer is presumed negligent for the failure to observe due diligence in the selection and supervision of its employees. DEFENSE OF EMPLOYER The employer can escape liability if he can establish that he exercised proper diligence in the selection and supervision of his negligent employee. A. Diligence in the Selection - this requires the examination of the applicants as to their qualifications, experience and service records.
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B. Diligence in Supervision Supervision depends on the circumstances of employment. It can be shown by promulgation of proper rules and regulations and the formulation and publication of proper instructions for the employees guidance. The liability of an employer and employee is solidary. LIABILITY OF OWNERS OF MOTOR VEHICLES Article 2184. In motor vehicle mishaps, the owner is solidary liable with his driver, if the former, who was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. Solidary liability is imposed on the owner of the vehicle not because of his imputed liability but because his own omission is a concurring proximate cause of the injury. The theory is that ultimately the negligence of the servant, if known to the master and susceptible of timely correction by him, reflects his own negligence if he fails to correct it in order to prevent injury or damage. Registered owner rule The person who is the registered owner of a vehicle is liable for any damages caused by the negligent operation of the vehicle although the same was already sold or conveyed to another person. The rule applies to quasi-delict cases a. Proof the person invoking the rule must present a proof which is best reflected by the certificate of registration of the vehicle. b. Liability of transferee The transferee is liable to the registered owner for the damages caused to the passenger. The registered owner has a right to be reimbursed by the transferee. Leased Vehicles The registered owner rules applies to leased vehicles, unless the lease contract is annotated by the lessor-owner at the back of the certificate of registration in order to give notice to third parties that the lessee and not the registered owner who is in the possession and operation the vehicle. The registered owner rule does not apply to stolen vehicles. Kabit System is an arrangement whereby a person who has been granted a certificate of public convenience allows other persons who own motor vehicles to operate them under his license, sometime for a fee or percentage of the earnings. Consistent with the registered owner rule, the plaintiff need not to prove the actual operator of a vehicle involved in the accident. Liability of Employer Under the Revised Penal Code The liability of an employer is subsidiary with the employee provided the following requisites concur: a. That the person sought to be made liable is indeed the employer of the convicted accused b. The employer is engaged in any kind of industry c. That the employee was convicted of the offense committed in the discharge of his duties d. The employee is insolvent. KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 33
Conviction of the employee is a condition sine qua non, and proof of the latters insolvency to render the employer subsidiary liable. LIABILITY OF INNKEEPERS AND HOTELKEEPERS Article 102 of the Revised Penal Code provides that innkeepers, tavernkeepers, and any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees, in default of the persons criminally liable. Innkeepers are liable for the restitution of goods taken away by robbery of theft within their houses from guests lodging therein. No liability shall attach in case of robbery with violence against or intimidation of persons unless committed by the innkeepers employees. LIABILITY OF PARTNERSHIP The partnership or every member of a partnership, is liable for torts committed by one of the members acting within the scope of the firm business, though they do not participate in, ratify, or have knowledge of such torts. The vicarious liability of partnership are embodied by article 1822,1823 and 1824 of the New Civil Code. LIABILITY OF SPOUSES Absolute Community Property The absolute community property shall be liable for liabilities incurred by either spouses by reason of a crime or a quasi-delict Conjugal partnership of gains The general rule is that pecuniary indemnities imposed upon the husband and wife are not chargeable against the conjugal partnership but against the separate properties of the wrongdoer. Complete separation of properties - Liability is imposed on the separate property of the offending spouse.
LIABILITY OF THE STATE and GOVERNMENT INSTRUMENTALITIES and OFFICERS State The state cannot be sued without its consent, it can only be held liable if it act thru a special agent (6 th paragraph of article 2180 of the New Civil Code). A special agent is one who receives definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official. Not all Government entities, whether corporate or non-corporate, are immune from suits. Immunity from suits is determined by the character of the objects for which the entity was organized. Municipal Corporations 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. LIABILITY OF PUBLIC OFFICERS Public officers who are guilty of tortuous conduct are personally liable for their actions. The revised Administrative Code of 1987 provides that KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 34
Sec.38 a public officer shall not be civilly liable for act done in the performance of his official duties unless there is a clear showing of bad faith, malice or gross negligence. JUDGES AND OFFICERS PERFORMING QUASI- JUDICIAL FUNCTIONS Judges cannot be held liable in exercising its Judicial Function for it would destroy the Independence of the Judiciary, unless it can be shown that the Judge acted with malice. STRICT LIABILITY
There is strict liability if one is made liable independent of fault, negligence or intent after establishing certain facts specified by law. Strict liability tort can be committed even if reasonable care was exercised and regardless of the state of mind of the actor at that time. In Black Law Dictionary, strict liability is defined as liability without fault. When neither care nor negligence, neither good faith or bad faith, neither knowledge nor ignorance will save the defendant.
Examples of Strict liability:
LIABILITY OF EMPLOYERS
Art.1711 Owners of enterprises and other employers are obliged to pay compensation for the death of or injuries to their laborers, workmen, mechanics or other employees, even though the event may have been purely accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in the course of the employment. The employer is also liable for compensation if the employee contracts any illness or disease caused by such employment or as the result of the nature of the employment. If the mishap was due to the employee's own notorious negligence, or voluntary act, or drunkenness, the employer shall not be liable for compensation. When the employee's lack of due care contributed to his death or injury, the compensation shall be equitably reduced.
ANIMALS
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 the damage.
The plaintiff must establish the damage done by the animal to him and the possessor or the one who makes use of the said animal.
FALLING OBJECTS
Art. 2193 The head of the family that lives in a building or a part thereof, is responsible for damages caused by things thrown or falling from the same.
Lessees and owners of a building are liable in this provision if due to things thrown or falling from the same causes damage to another.
NUISANCE
There is strict liability on the part of the owner or possessor of the property where a nuisance is found because he is obliged to abate the same irrespective of the presence or absence of fault or negligence.
UNJUST ENRICHMENT
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. KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 35
PRODUCT AND SERVICE LIABILITY
Section 9 of Article XVI of the 1987 Constitution provides that The state shall protect the consumers from trade malpractices and from substandard and hazardous products. The constitutional provision that makes it a state policy to protect consumers is intended not only against traders but also manufacturers who dump defective, substandard or even hazardous products in the market This constitutional mandate is embodied in Republic Act no. 7394 or the Consumer Act of the Philippines.
ALTERNATIVE THEORIES
There are five different cause of action that may justify the award of damages for the injuries sustained because of defective products, they are:
1 Fraud or Misrepresentation 2 Breach of Warranty 3 Negligence 4 Civil Liability arising from criminal liability 5 Strict liability
FRAUD OR MISREPRESENTATION
If a seller misrepresented to the buyer that the product has no side-effects the seller is liable to the buyer who was damaged because of the side effect. It should be noted that not all expressions are considered actionable misrepresentation if they are established to be inaccurate. Under the New Civil Code, usual exaggerations in trade are not actionable misrepresentation.
BREACH OF WARRANTY
A warranty under the New Civil Code is any affirmation of fact or any promise by the seller relating to the thing, the necessary tendency of which is to induce the buyer to purchase the same, and the buyer purchases the thing relying thereon. Warranties may be express or implied. There is always an implied warranty unless a contrary intention appears (Art. 1547 of the NCC)
Requisites of an express warranty
a. Set forth the terms of the warranty in clear and understandable language b. Identify the party to whom the warranty is extended c. State the products or parts covered. d. State what the warrantor will do in the event of a defect, malfunction of failure to conform to the warranty and at whose expense e. State what the consumer must do to avail of the rights which accrue to the warranty f. Stipulate the period within which, after notice of the defect, malfunction or failure to conform to the warranty, the warrantor will perform any obligation under the warranty
Article 68 of the Consumer Act provides: xxxxx c) Designation of warranties
A written warranty shall clearly and conspicuously designate such warranty as 1)"Full warranty" if the written warranty meets the minimum requirements set forth in paragraph (d); or 2)"Limited warranty" if the written warranty does not meet such minimum requirements.
d)Minimum standards for warranties -For warrantor of a consumer product to met the minimum standards for warranty, he shall: KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 36
1)remedy such consumer product within a reasonable time and without charge in case of a defect, malfunction or failure to conform to such written warranty; 2)permit the consumer to elect whether to ask for a refund or replacement without charge of such product or part, as the case may be, where after reasonable number of attempts to remedy the defect or malfunction, the product continues to have the defect or malfunction. The warrantor will not be required to perform the above duties if he can show that the defect, malfunction or failure to conform to a written warranty was caused by damage due to unreasonable use thereof.
e)Duration of warranty
-The seller and the consumer may stipulate the period within which the express warranty shall be enforceable. If the implied warranty on merchantability accompanies an express warranty, both will be of equal duration.
f)Any other implied warranty shall endure not less than sixty (60) days nor more than one (1) year following the sale of new consumer products.
g)Breach of warranties
-(1) In case of breach of express warranty, the consumer may elect to have the goods repaired or its purchase price refunded by the warrantor. In case the repair of the product in whole or in part is elected, the warranty work must be made to conform to the express warranty within thirty (30) days by either the warrantor or his representative. The thirty-day period, however, may be extended by conditions which are beyond the control of the warrantor or his representative. In case the refund of the purchase price is elected, the amount directly attributable to the use of the consumer prior to the discovery of the non-conformity shall be deducted.
h)In case of breach of implied warranty, the consumer may retain in the goods and recover damages, or reject the goods, cancel and contract and recover from the seller so much of the purchase price as has been paid, including damages
Article 1567 of the New Civil Code provides that the vendee may elect between withdrawing from the contract or demanding a proportionate reduction of the price, with damages in either cases.
RECORDS AND REPORTS
As a part of the rule regarding the enforcement of warranties, it is required that the distributors and retailers keep a record of all purchases covered by a warranty or guarantee for such period of time corresponding to the lifetime of the products respective warranties or guarantees. Sales report are required to be submitted 30 days from the date of purchase to the manufacturer, producer or importer, failure to comply with the requirements relieves the latter liability under the warranty.
LIABILITY OF RETAILERS
The retailer shall be subsidiarily liable under the warranty in case of failure of both manufacturer and distributor to honor the warranty. In such case, the retailer shall shoulder the expenses and cost necessary to honor the warranty. On the other hand, the recourse of the retailer is to proceed against the distributor or manufacturer.
ENFORCEMENT OF WARRANTIES
The purchaser must present the warranty card and the product to be serviced returned to the seller
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PRIVITY NOT REQUIRED
The warranty extends up to the end buyer not only to the immediate buyer.
NEGLIGENCE
The matters that were discussed regarding liability based on delict and quasi-delict in the earlier chapters apply to liability for defective products. The liability will result if due care of an ordinarily prudent man was not exercised in manufacturing, packaging, marketing or distributing the product.
VIOLATION OF STATUTE AS PROOF NEGLIGENCE
Generally, the care, which must be exercised, would depend on the circumstances of each case. It is important to note that in product liability law, special laws and the rules and regulations of proper government agencies already impose certain standards. Certain acts or omissions are expressly prohibited by statutes thereby making violation thereof negligence per se. For instance, Section 11 of republic Act no. 3720 otherwise known as the Food, drug and Cosmetics Act.
DELICT
The buyer or the ultimate consumer may likewise enforce the obligation of the manufacturer or the seller based on delict. The liability may be based on criminal negligence under the Revised Penal Code as the case may be. Damages may also be enforced in violation of Special Laws.
STRICT LIABILITY
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.
Privity of contract is not required under Article 2187 because it expressly allows recovery although no contractual relation exists. The word shall indicates that the liability of the manufacturer and processor is strict. Even if there is no negligence, however, public policy demands that the responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.
Art 97 and 99 of the Consumer act provides strict liability to defective products and does no require privity of contracts. Manufacturers shall be liable to the defects of the products in the said articles.
RATIONALE OF STRICT LIABILITY OF MANUFACTURERS
a. The consumer finds it too difficult to prove negligence against the manufacturer. b. Strict liability provides an effective and necessary incentive to manufacturers to make their products as safe as possible. c. Res ipsa loquitur is in fact applied, in some case, to impose liability upon producers who have not in fact been negligent; therefore negligence should be dispensed with. d. Reputable manufacturers do in fact stand behind their products, replacing and repairing those which prove to be defective; and many of them issue agreements to do so. Therefore, all should be responsible when injury results from a normal use of a product. e. The manufacturer is in a better position to protect against harm, by insuring against liability for it, and, by adding the costs of the insurance to the price of the product , to pass the loss to the general public KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 38
f. Strict liability can already be accomplished by a series of actions in which the consumer first recovers from the retailer on a warranty, and liability on warranties is then carried back through the intermediate dealers to the manufacturer. The process is time- consuming, expensive and wasteful; there should be a short-cut g. By placing the product on the market, the seller represents to the public that it is fit, and he intends and expects that it will be purchased and consumed in reliance upon that representation. The middleman is no more than a conduit, a mechanical device through which the thing sold reaches the consumer. h. The costs of accidents should be place on the party best able to determine whether there are means to prevent the accidents
MEANING OF DEFECTIVE PRODUCT:
Article 97 of the consumer acts provides:
a. Manufacturing Defect defects resulting from manufacture, construction, assembly and erection
b. Design defect defects resulting from design and formulas. (in the absence of standard imposed by law for the design and formula of a product, the Customer Expectation test is adopted under the Consumer Act a product may be found to be defective in design if it failed to perform as safely as the consumer expected it to be)
c. Presentation defect defects resulting from handling, making up, presentation or packing of the products.
d. Absence of appropriate warning defect resulting from the insufficient or inadequate information on the use and hazards of the product. (the Consumer Act expressly states that as a policy that the state shall enforce compulsory labeling, and fair packaging to enable the consumer to obtain accurate information as to the nature, quality and quantity of the contents of consumer products and to facilitate his comparison of the value of such products)
MALFUNCTION DOCTRINE
A product defect may be inferred by circumstantial evidence that 1 The product malfunctioned 2 The malfunction occurred during proper use 3 The product had not been altered or misused in a manner that probably caused the malfunction.
DEFENSES
Article 97 provides that the manufacturer, builder, producer or importer shall not be liable when it evidences:
a. That it did not place the product on the market b. That although it did not place the product on the market such product has no defect c. That the consumer or a third party is solely at fault Article 99 provides that the supplier of the services shall not be liable when it is proven: a. That there is no defect in the service rendered b. That the consumer or third party is solely at fault.
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COMPARATIVE NEGLIGENCE
Comparative negligence is not applicable in strict liability, besides, there is no provision in the Consumer Act which allows such mitigation.
BUSINESS TORTS
The New Civil Code expressly provides that the indemnification for damages shall comprehend profits that the obligee failed to obtain. The provision, in effect, also recognizes the existence of liability for various interference with business interests. The Interference may be in form of negligent or intentional acts or omissions. It may arise from different sources of obligation like delict, quasi-delict, or breach of contract.
This section deals with business torts known as
1. Interference with contractual relations.
2.Interference with prospective advantage 3.Unfair competition 4.Securities Related Fraud
INTERFERENCE WITH CONTRACTUAL RELATIONS
Article 1314. Any third person who induces another to violate his contract shall be liable for damages to the other contracting party
Elements of the tort of interference of contractual relations:
1. Existence of a valid contract 2. Knowledge on the part of the third person of the existence of the contract 3. Interference of the third person without legal justification or excuse.
The breach of the contract must be due to the interference of a third person with the knowledge of the existence of said contract. Malice or ill-will is immaterial, if the persuasion of the third person is used for the indirect purpose of injuring the plaintiff or benefitting the defendant at the expense of the plaintiff, it is a malicious act which in law and fact a wrongful act.
INTERFERENCE WITH PROSPECTIVE ADVANTAGE
If there is no contract yet and the defendant is only being sued for inducing another not to enter into a contract with the plaintiff, the tort committed is appropriately called interference with prospective advantage.
UNFAIR COMPETITION
Article 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.
Section 168 of the Intellectual Property Code or Republic Act 8293 gives a definition of Unfair Competition Section 168. Unfair Competition, Rights, Regulation and Remedies. - 168.1. A person who has identified in the mind of the public the goods he manufactures or deals in, his business or services from those of others, whether or not a registered mark is employed, has a property right in the goodwill of the said goods, business or services so identified, which will be protected in the same manner as other property rights. 168.2. Any person who shall employ deception or any other means contrary to good faith by which he shall pass off the goods KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 40
manufactured by him or in which he deals, or his business, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result, shall be guilty of unfair competition, and shall be subject to an action therefor. 168.3. In particular, and without in any way limiting the scope of protection against unfair competition, the following shall be deemed guilty of unfair competition: (a) Any person, who is selling his goods and gives them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or words thereon, or in any other feature of their appearance, which would be likely to influence purchasers to believe that the goods offered are those of a manufacturer or dealer, other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade, or any subsequent vendor of such goods or any agent of any vendor engaged in selling such goods with a like purpose; (b) Any person who by any artifice, or device, or who employs any other means calculated to induce the false belief that such person is offering the services of another who has identified such services in the mind of the public; or (c) Any person who shall make any false statement in the course of trade or who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another. 168.4. The remedies provided by Sections 156, 157 and 161 shall apply mutatis mutandis. (Sec. 29, R.A. No. 166a) The Revised Penal Code also provides: Art. 186. Monopolies and combinations in restraint of trade. The penalty of prision correccional in its minimum period or a fine ranging from 200 to 6,000 pesos, or both, shall be imposed upon: 1. Any person who shall enter into any contract or agreement or shall take part in any conspiracy or combination in the form of a trust or otherwise, in restraint of trade or commerce or to prevent by artificial means free competition in the market; 2. Any person who shall monopolize any merchandise or object of trade or commerce, or shall combine with any other person or persons to monopolize and merchandise or object in order to alter the price thereof by spreading false rumors or making use of any other article to restrain free competition in the market; 3. Any person who, being a manufacturer, producer, or processor of any merchandise or object of commerce or an importer of any merchandise or object of commerce from any foreign country, either as principal or agent, wholesaler or retailer, shall combine, conspire or agree in any manner with any person likewise engaged in the manufacture, production, processing, assembling or importation of such merchandise or object of commerce or with any other persons not so similarly engaged for the purpose of making transactions prejudicial to lawful commerce, or of increasing the market price in any part KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 41
of the Philippines, of any such merchandise or object of commerce manufactured, produced, processed, assembled in or imported into the Philippines, or of any article in the manufacture of which such manufactured, produced, or imported merchandise or object of commerce is used. INTERFERENCE
Unfair competition is present where a businessman interferes with the contract of his competitor to get the latters clients.
MISAPPROPRIATION
When the defendant committed fraudulent misappropriation against a competitor.
MONOPOLIES AND PREDATORY PRICING
Monopoly is present when there is concentration of business in the hands of the few that result in power to control price and the competition. A practice of selling below costs in the short run in the hope of obtaining monopoly gains later, after driving the competition from the market.
SECURITIES RELATED TORTS Section 26. Fraudulent Transactions. It shall be unlawful for any person, directly or indirectly, in connection with the purchase or sale of any securities to: 26.1. Employ any device, scheme, or artifice to defraud; 26.2. Obtain money or property by means of any untrue statement of a material fact of any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or 26.3. Engage in any act, transaction, practice or course of business which operates or would operate as a fraud or deceit upon any person. The essential objective of securities legislation is to protect those who do not know market conditions from the overreaching of those who do.
MISSTATEMENTS
No securities , except those classified as exempt or unless sold in any exempt transaction, can be sold or offered for sale or distribution to the public within the Philippines unless such securities shall have been registered with the Securities and Exchange Commission.
Section 56 of RA 8799 provides for the incident of False Registration Statement and the person liable thereof Section 56. Civil Liabilities on Account of False Registration Statement. 56.1. Any person acquiring a security, the registration statement of which or any part thereof contains on its effectivity an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make such statements not misleading, and who suffers damage, may sue and recover damages from the following enumerated persons, unless it is proved that at the time of such acquisition he knew of such untrue statement or omission: (a) The issuer and every person who signed the registration statement: (b) Every person who was a director of, or any other person performing similar functions, or a partner in, the issuer at the time of the filing of the registration statement or any part, supplement or amendment thereof with respect to which his liability is asserted; KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 42
(c) Every person who is named in the registration statement as being or about to become a director of, or a person performing similar functions, or a partner in, the issuer and whose written consent thereto is filed with the registration statement; (d) Every auditor or auditing firm named as having certified any financial statements used in connection with the registration statement or prospectus. (e) Every person who, with his written consent, which shall be filed with the registration statement, has been named as having prepared or certified any part of the registration statement, or as having prepared or certified any report or valuation which is used in connection with the registration statement, with respect to the statement, report, or valuation, which purports to have been prepared or certified by him. (f) Every selling shareholder who contributed to and certified as to the accuracy of a portion of the registration statement, with respect to that portion of the registration statement which purports to have been contributed by him. (g) Every underwriter with respect to such security. DEFENSES
The defendants are free from liability if they can prove that at the time of the acquisition, the plaintiff knew of the untrue statement or omission.
DAMAGES
The court may award damages not exceeding triple the amount of the transactions plus actual damage. Exemplary damage may also be awarded in cases of bad faith, fraud, malevolence or wanton violation of RA 8799. The defendants liability is jointly and severally
DAMAGES
The Supreme Court defined the word Damages in one case as the pecuniary compensation, recompense, or satisfaction for an injury sustained, or as otherwise expressed, the pecuniary consequences which the law imposes for the breach of some duty or violation of some rights. Complaint for damages is a Personal Action and the award must be money. There is no liability in cases of a valid exercise of a right in good faith. (DAMNUM ABSQUE INJURIA) One who exercises a right does no injury.
KINDS OF DAMAGES: (art.2197 NCC)
Art. 2197 Damages may be:
1. Actual or compensatory 2. Moral 3. Nominal 4. Temperate or moderate 5. Liquidated 6. Exemplary or Corrective
ACTUAL OR COMPENSATORY
Art.2199 Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damage
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Art. 2205 Damages may be recovered:
1. For loss or impairment of earning capacity in cases of temporary or permanent personal injury 2. For injury to the plaintiffs business standing or commercial credit.
CERTAINTY OF DAMAGES
A party is entitled to adequate compensation only for such pecuniary los actually suffered and duly proved. It is a basic rule that to recover damages, the amount of loss must not only be capable of proof but must be actually proven with a reasonable degree of certainty, premised upon competent proof or best evidence obtainable of the actual amount thereof. A court cannot rely on speculations, conjectures, or guesswork as to the fact and amount of damages. It cannot also rely on hearsay or uncorroborated testimony, the truth of which is suspect. The burden of proof is incumbent upon the plaintiff to prove actual loss. Exceptions: a. The right to damages is not loss by mere difficulty to prove actual damage provided that the right to them has been established. b. Civil Indemnity is mandatory in crimes of rape, and cases where the victim died.( article 2206 NCC)
RESTITUTO in INTEGRUM
The amount to be awarded to the plaintiff should be that sum of money which will put the party who has been injured or who has suffered in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation.
Exception: In some cases, Defendants gain is the measure for the award of damages.
DAMAGE TO PROPERTY
a. Personal Property the plaintiff is entitled to the value at the time of the destruction of the property
b. Real property - Ordinarily the difference between the reasonable market value of the property immediately before and after the injury. In cases of loss or deprivation of possession, the plaintiff is entitled to the value of the premises or rental value of the real property.
PERSONAL INJURY
The plaintiff shall be entitled to actual medical and other expenses and Future medical expenses and life care cost. Indemnity or life care cost may be awarded thru periodic payments or lump sum.
DAMAGES IN CASES OF DEATH
Art 2206 states that the heirs, spouse, legitimate and illegitimate descendants and ascendants of the deceased are entitled to damages due to the death of the deceased caused by a crime or quasi-delict by the defendant.
Damages that can be awarded:
Civil Indemnity the amount of 3,000pesos is the minimum award that the court may grant in cases of death caused by a crime or a quasi-delict. Actual Damages has to be duly proved by the plaintiff (heirs of the deceased) this includes wake and funeral expenses. Moral Damages (discussed hereunder) Exemplary damages ( ) Attorneys fee (discussed hereunder) Interest (discussed hereunder)
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LOSS OF EARNING CAPACITY
The plaintiff shall also be entitled to damages for loss of earning capacity. The formula for computation of loss of earning capacity is:
Net Earning Capacity = Life expectancy x [gross annual income less necessary living expenses]
Life expectancy is computed as 2/3 x [80-age at death]
Living expenses is 50% of gross income
Sufficient evidence should be presented by the plaintiff to establish the net earnings of the deceased. No documentary evidence are required if the deceased is; a. Self-employed earning less than the minimum wage b. Employed as daily wage worker earning less than the minimum wage under current labor laws.
LOSS OF EARNING CAPACITY OF NON- WORKING VICTIMS
The recovery of damages are usually premised on the situation of the victim wherein the latter has no employment or a student. What is important is that there is proof of loss of earning capacity and not necessarily actual loss of income. Evidence must be presented that the victim, if not yet employed at the time of death, was reasonably certain to complete training for a specific profession, contrary to that would result to denial of the award of damages.
LOSS OF PROFITS
Loss of profits of businesses may also be recovered provided they duly proved, foreseen and expected. Unrealized profits cannot be awarded if the basis is too speculative and conjectural.
ATTORNEYS FEE Attorneys fee is due to the plaintiff not to the counsel, the amount agreed upon by plaintiff and his counsel cannot affect the award of attorneys fee. Generally attorneys fee cannot be awarded the exception to this rule is: Article 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except: (1) When exemplary damages are awarded; (2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; (3) In criminal cases of malicious prosecution against the plaintiff; (4) In case of a clearly unfounded civil action or proceeding against the plaintiff; (5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just and demandable claim; (6) In actions for legal support; (7) In actions for the recovery of wages of household helpers, laborers and skilled workers; (8) In actions for indemnity under workmen's compensation and employer's liability laws; (9) In a separate civil action to recover civil liability arising from a crime; KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 45
(10) When at least double judicial costs are awarded; (11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered. In all cases, the attorney's fees and expenses of litigation must be reasonable. INTEREST
Article 2209. If the obligation consists in the payment of a sum of money, and the debtor incurs in delay, the indemnity for damages, there being no stipulation to the contrary, shall be the payment of the interest agreed upon, and in the absence of stipulation, the legal interest, which is six per cent per annum. (1108) Article 2210. Interest may, in the discretion of the court, be allowed upon damages awarded for breach of contract. Article 2211. In crimes and quasi-delicts, interest as a part of the damages may, in a proper case, be adjudicated in the discretion of the court. Article 2212. Interest due shall earn legal interest from the time it is judicially demanded, although the obligation may be silent upon this point. (1109a) Article 2213. Interest cannot be recovered upon unliquidated claims or damages, except when the demand can be established with reasonable certainty. CB circular No. 416 applies to 1. Loans 2. Obligations not constituting a loan 3. Judgment involving cases stated above
If the obligation consist of a loan the interest is 12 %
If the obligation does not constitute a loan the interest is 6%
When judgment becomes final the interest shall be reckoned at 12%
MITIGATION OF LIABILITY
Article 2203. The party suffering loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question. Article 2204. In crimes, the damages to be adjudicated may be respectively increased or lessened according to the aggravating or mitigating circumstances. Article 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover. Article 2215. In contracts, quasi-contracts, and quasi-delicts, the court may equitably mitigate the damages under circumstances other than the case referred to in the preceding article, as in the following instances: (1) That the plaintiff himself has contravened the terms of the contract; (2) That the plaintiff has derived some benefit as a result of the contract; (3) In cases where exemplary damages are to be awarded, that the defendant acted upon the advice of counsel; (4) That the loss would have resulted in any event; (5) That since the filing of the action, the defendant has done his best to lessen the plaintiff's loss or injury. KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 46
COLLATERAL SOURCE RULE
Article 2207. If the plaintiff's property has been insured, and he has received indemnity from the insurance company for the injury or loss arising out of the wrong or breach of contract complained of, the insurance company shall be subrogated to the rights of the insured against the wrongdoer or the person who has violated the contract. If the amount paid by the insurance company does not fully cover the injury or loss, the aggrieved party shall be entitled to recover the deficiency from the person causing the loss or injury.
MORAL DAMAGES
Article 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act for omission.
A claim for moral damages is personal to the offended party and the latter has to prove that his moral suffering was the proximate result of the act of the defendant. The exception is stated in the last two paragraphs of Article 2219
No proof is required for moral damages in cases of death of the victim and rape cases. Corporations are not entitled to moral damages on the ground that they are artificial persons, no feeling no emotions to start with, hence cannot suffer mental and emotional suffering.
Moral Damages may be recovered where the dismissal of the employee was attended by bad faith or constitute an act oppressive to labor or was done contrary to morals.
CASES WHEN MORAL DAMAGES MAY BE AWARDED Article 2219. Moral damages may be recovered in the following and analogous cases: (1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in article 309; (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages. The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article, in the order named.
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FACTORS IN DETERMINING AMOUNT There is no hard and fast rule that could determine the amount of moral damages. The factors that may be considered are: a. Extent of Humiliation b. Pain and suffering (especially in death and physical injuries) c. Official, Political, Social and Financial Standing. d. Age NOMINAL DAMAGES Article 2221. Nominal damages are adjudicated in order that a 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. Article 2222. The court may award nominal damages in every obligation arising from any source enumerated in article 1157, or in every case where any property right has been invaded. Article 2223. The adjudication of nominal damages shall preclude further contest upon the right involved and all accessory questions, as between the parties to the suit, or their respective heirs and assigns. Nominal Damages cannot co-exist with actual Damages on the ground that the claim of actual damages, if any, and if duly proven, will serve as the vindication of the right of the plaintiff, hence the award of nominal damage is unnecessary and improper. TEMPERATE OR MODERATE DAMAGES Article 2224. Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be provided with certainty.
Article 2225. Temperate damages must be reasonable under the circumstances. FIXED TEMEPRATE DAMAGES In murder cases, the supreme Court pegged the amount of 25,000 pesos if actual damages are not established LIQUIDATED DAMAGES Article 2226. Liquidated damages are those agreed upon by the parties to a contract, to be paid in case of breach thereof. Article 2227. Liquidated damages, whether intended as an indemnity or a penalty, shall be equitably reduced if they are iniquitous or unconscionable. Article 2228. When the breach of the contract committed by the defendant is not the one contemplated by the parties in agreeing upon the liquidated damages, the law shall determine the measure of damages, and not the stipulation. Reduction is subject to the courts discretion considering the case to assure the equitable resolution of the amount of damages. Reduction may prosper especially when the obligation is substantially performed, and reduction is not warranted when the circumstances show that one of the parties is in bad faith and has no intent with complying with the terms of the obligation. KMISRLBHN Student no. 2012-0692 Arellano University School of Law TORTS AND DAMAGES SUMMARY REVIEWER Page 48
EXEMPLARY DAMAGES Article 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. Exemplary damages are also called punitive damages. Exemplary damages are imposed as a deterrent against or as a negative incentive to curb socially deleterious actions. Article 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party. Article 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. Article 2232. In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner. Article 2233. Exemplary damages cannot be recovered as a matter of right; the court will decide whether or not they should be adjudicated. Article 2234. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded. In case liquidated damages have been agreed upon, although no proof of loss is necessary in order that such liquidated damages may be recovered, nevertheless, before the court may consider the question of granting exemplary in addition to the liquidated damages, the plaintiff must show that he would be entitled to moral, temperate or compensatory damages were it not for the stipulation for liquidated damages. Article 2235. A stipulation whereby exemplary damages are renounced in advance shall be null and void. CRIMINAL CASES In Criminal Cases, the imposition of exemplary damage is proper when there is an aggravating circumstance. QUASI-DELICT CASES When the defendant acted with gross negligence exemplary damages should be imposed. QUASI-CONTRACT If the defendant acted in an oppressive manner, such as when the creditor defendant acted oppressively by pestering the debtor to pay interest and threatened to block the latters transaction if he or she would not pay interest.