Doctrine of Contributory Negligence

- Conduct on the part of the injured party, contributing as a legal cause to the harm he has
suffered, which falls below the standard to which he is required to conform for his own
protection.

- Negligence not proximate cause of injury The above definition does not indicate the extent
or nature of the plaintiffs negligence. Art. 2179 expressly uses the words immediate and
proximate in the first sentence, thereby implying that contributory negligence mentioned in
the second sentence contemplates negligence of the plaintiff that is not proximate.

- Contributory negligence under Art. 2179 means negligence on the part of the injured party
which merely contributes to, but is not the proximate cause of, his injury, and results in the
mitigation of the defendants liability and the plaintiffs indemnity.

- Mitigation of defendants liability It has been held that to hold a person as having
contributed to his injuries, it must be shown that he performed an act that brought about his
injuries in disregard of warnings or signs of an impending danger to his health and body.

- Common law rule Contributory negligence was a complete defense to an action based on
negligence, at least prior to 1945 in UK and 1908 in the US.

- Doctrine of comparative negligence Doctrine of contributory negligence has been criticized

as overly harsh. It has been modified by the doctrine of comparative negligence under which
a comparison is made in terms of the degree of the negligence of the plaintiff and that of the
defendant and the amount of damages recoverable by the plaintiff is reduced to the extent of
the negligence.

- Pure form of this doctrine allows the plaintiff to recover regardless of the extent of
negligence. Under the modified form, the plaintiff can recover only if his negligence is less
than or equal to that of the defendant.

- Rule followed in our jurisdiction. Modified form of comparative negligence.

- Evident from the language of Art. 2179 When the negligence of the plaintiff (or his servant
or agent) is the sole cause or the proximate of his injury, he cannot recover, but if his
negligence only contributes remotely or otherwise but not proximately, to his injury, he is
deemed partly responsible and his recovery shall be diminished in proportion to the amount
of fault attributable to him.

- Under our law, the plaintiff whose negligence is relatively slight or minor or is remote
or less in degree or not greater than that of the defendant, can recover. So, the fact that
the plaintiff is equally responsible as the defendant, does not preclude a recovery under Art.
2179 unless the negligence was the direct or proximate cause of his injury.

- Bring rulings on contributory negligence. p. 279

Doctrine of Last Clear Chance

- The negligence of the plaintiff does not preclude a recovery for the negligence of the
defendant where it appears that the defendant, by exercising reasonable care and prudence,
might have avoided injurious consequences to the plaintiff notwithstanding the plaintiffs
negligence.

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 - A person who has the last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent, or that of a third person imputed to the
opponent, is considered in law solely responsible for the consequences of the accident.

- Antecedent negligence of the plaintiff is immaterial.

Elements

1. That the plaintiff was in a position of danger and, by his own negligence, became unable to
escape from such position by the use of ordinary care, either because it became physically
impossible for him to do so, or because he was totally unaware of the danger.

2. The defendant knew that the plaintiff was in a position of danger, and further knew, or in the
exercise of ordinary care should have known, that the plaintiff was unable to escape
therefrom.
3. That thereafter defendant had the last clear chance to avoid the accident by the exercise of
ordinary care but failed to exercise such last clear chance, and the accident occurred as a
proximate cause of such failure.

Defense available to the defendant

- Although a defendant may not invoke the doctrine, it does not preclude him from proving that the
plaintiff had the last clear opportunity to avert the injury complained of and thus, establish that the
plaintiff was guilty of contributory negligence which proximately caused the accident and
consequently bars plaintiffs recovery.

Applications of the doctrine. P .283

Doctrine of Res ipsa Loquitur. P. 294

- literally means the thing or the transaction speaks for itself.
- It is a maxim for the rule that the fact of occurrence of an injury, taken with the surrounding
circumstances, may permit an inference of negligence, or make out a plaintiffs prima facie
case, and present a question of fact for defendant to meet with an explanation.

Basis The doctrine is simply a recognition of the postulate that, as a matter of common knowledge
and experience, the very nature of certain types of occurrences may justify an inference of negligence
on the part of the person who controls the instrumentality or agency causing the injury in the
absence of some explanation by the defendant who is charged with negligence.

A rule of evidence The doctrine, as a rule of evidence is peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof and furnishes a
substitute for specific proof of negligence. The rule is not a rule of substantive law but merely a mode
of proof or a mere procedural convenience.

The rule, when applicable, is not intended to and does not dispense with the requirement of proof of
culpable negligence on the part of the party charged. It merely determines and regulates what shall
be prima facie evidence thereof, and facilitates the burden of plaintiff of proving a breach of the duty
of due care.

When doctrine may be invoked when and only, under the circumstances involved, direct evidence is
absent and not readily available.

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Requisites

1.The accident is of a kind or character which ordinarily does not occur in the absence of someones
negligence.
2.It is caused by an instrumentality or agency within the exclusive management or control of the
defendant or defendants; and
3.The possibility of contributing conduct which would make the plaintiff responsible is eliminated.

Under the first req, ordinary refers to the usual course of events.
In the above requisites, the fundamental element is the control of the instrumentality or agency
which caused the damage. Such element of control of the cause of the injury must be shown to be
within the dominion of the defendant.

Application of doctrine to medical malpractice. The doctrine of res ipsa loquitur is not, however, a
rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case.

In malpractice cases, the doctrine is generally restricted to situations where a layman is able to say as
a matter of common knowledge and observation, that the consequences of a professional care were
not as such as would ordinarily have if due care had been exercised.

Illustrative cases. P. 298

Emergency Rule. P. 304

Under this rule, a person without fault or negligence on his part, is suddenly placed in an emergency
or unexpected danger and compelled to act instantly and instinctively with no time for reflection and
exercise of the required precaution, is not guilty of negligence, and, therefore, exempt from liability, if
he did not make the wisest choice of the available courses of conduct to avoid injury which a
reasonably prudent person would have made under normal circumstances.

Rationale Courts have traditionally bee compelled to recognize that an actor who is confronted with
an emergency is not to be held up to the standard of conduct normally applied to an individual who is
in no such situation. The law takes stock of impulses of humanity when placed in threatening or
dangerous situations, and does not require the same standard of thoughtful and reflective care from
persons confronted by unusual and oftentimes threatening conditions.

When error not applicable. One confronted with a sudden peril is not excused from all errors of
judgment. He is still required to exercise that standard of care expected of an ordinarily prudent man
faced with the same sudden or unexpected situation. The rule is not applicable where the situation or
danger was caused by his own negligence.

**person driving his car at a very high rate speed in violation of traffic rules and suddenly finds
himself confronted with the choice of hitting a pedestrian or another car, and opts for the latter, the
emergency doctrine is unavailable. (tortious conduct contributed to the creation of the emergency.)

Illustrative cases. p. 306

Standard of care for professionals

1.Compliance with the standards of profession. In ordinary negligence litigation, the failure to
comply with custom is not automatically negligent, and complying with custom is not automatically
reasonable care. In contrast, incases involving professionals, the rule is that compliance with custom
insulates the defendant from liability, and failure to comply with custom is malpractice.

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In medical malpractice, the standards of the medical profession are the relevant custom. Thus,
plaintiffs proof that the defendant committed malpractice consists of proof that the defendant
complied (sic) with the standards of the profession.

Indeed, in many jurisdictions, a respectable minority rule obtains, under which non-compliance
with a standard rejected by much of the profession is not malpractice, as long as the defendant
complied with the school of thought or practice followed by a respectable minority of practitioners.

Reasons for application of special standards to professionals alone.

a)Unfamiliarity of court w/ subjects of scrutiny.
b)Need for specialized judgment or opinion. Expert testimony, therefore, does not usually point to a
precise standard that governs the problem that the defendant faced. Rather, experts for each side
tend to testify about what they would have done in the defendants place, and what they believe good
medical practice required.

Medical malpractice
- 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, that
has caused bodily harm or injury to, or the death of a patient.

Elements
A patient must prove by preponderance of evidence;
a)the physician or surgeon either failed to do something which a reasonably p/s would have done, or
that he or she did something that a reasonably prudent p/s would not have done;
b)the failure or action caused injury to the patient.

Expert testimony is essential since the factual issue of whether a physician or surgeon has accused
the required degree of skill and care in the treatment of his patient is generally a matter of opinion.

Just like any other proceedings for damages, there are thus 4 elements involved in medical negligence
cases, duty, breach, injury, and proximate causation.

Breach proof of such breach must likewise rest upon the testimony of an expert witness that the
treatment accorded to the patient failed to meet the standard level 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.

Proof of breach of duty on the part of the attending physician is insufficient, for there must be a
causal connection between said breach and the resulting injury sustained by the patient.

In order that there may be recovery for an injury, it must be shown that the injury for which recovery
is sought must be the legitimate consequence of the wrong done.

The connection between the negligence and the injury must be a direct and natural sequence of
events, unbroken by intervening efficient causes, that is, the negligence must be the proximate cause
of the injury.

Just as w/ the elements of duty and breach of the same, in order to establish the evidence in a medical
malpractice action, the patient must similarly use expert testimony.

**If no standard is established thru expert medical witnesses, then courts have no standard by which
to gauge the basic issue of breach thereof by the physician or surgeon.

Sacred duty of a physician. p.318

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Practice of medicine conditioned upon the highest degree of diligence.

Professional standard of care. A physician will be held to the professional standard of care when
acting in a professional capacity.

Medical malpractice actions typically arise from a patients allegation of negligent diagnosis or
treatment. In order to prevail, the patient must show that the physician fell below the applicable
standard of care, thereby causing the patients injury. The standard of care to which physicians are
held is set by the custom of their profession. The physician must possess and use the knowledge and
skill common to members of the profession in good standing. The standard demands of the physician
minimal competence.

**Liability flows from the physicians failure to conform to the professions customary practice and
unlike the typical negligence case, the court has no discretion to find that the standard practice is
unreasonable.

Alternative approaches to the practice of medicine. Often there is more than one accepted way to
practice medicine. As long as one of the accepted approaches is followed, a doctor is procted from
malpractice liability.

Application of doctrine res ipsa loquitur to medical malpractice.

1.A question of law. Medical malpractice cases do not escape the application of this doctrine. Thus,
res ipsa loquitur has been applied when the circumstances attendant upon the harm are themselves
of such a character as to justify an inference of negligence as the cause of that harm.

The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a
judicial function to determine whether a certain set of circumstances does, as a matter of law, permit
a given inference.

2.Where doctrine is applicable, expert testimony is dispensed with.

(Because the injury itself provides the proof of negligence.)

The reason is that the general rule on the necessity of expert testimony applies only to such matters
clearly w/in the domain of medical science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone familiar with the facts.

3.Situations when doctrine applied. p.323.

4.Doctrine not automatically applicable to all cases of medical malpractice. Res ipsa, is not a rigid or
ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the
circumstances of each case. Its generally restricted to situations in malpractice cases where a layman
is able to say, as a matter of common knowledge and observation, that the consequences of
professional care were not as such as would ordinarily have followed if due care had been exercised.

5.When doctrine not available in a malpractice suit. It can have no application in a suit against a
physician or surgeon, which involves the merits of a diagnosis or a scientific treatment. The p/s is not
required at his peril to explain why any particular diagnosis was not correct, or why any particular
scientific treatment did not produce the desired result.

**Thus, res ipsa is not available in a malpractice suit if the only showing is that the desired result of
an operation or treatment was not accomplished.

6.Where extraneous interventions occurred. The real question, therefore, is w/n in the process of
the operation, any extraordinary incident or unusual event outside of the routine performance

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occurred w/c is beyond the regular scope of customary professional activity in such operations,
which, if unexplained would themselves reasonably speak to the average man as the negligent cause
of the untoward consequence. If there was such extraneous interventions, the doctrine of res ipsa
loquitur may be utilized and the defendant is called upon to explain the matter, by evidence of
exculpation, if he could.

Illustrative cases.p.324

Lawyer (or attorney) malpractice.

1. Scope of malpractice. Lawyer malpractice is ordinarily an economic tort, causing financial

harm w/o personal injury or property damage. It deals only w/ violation of a lawyers duty
arising out of the lawyers representation of a client. Lawyer malpractice, in other words,
entails breach of duty created by the contract or by the relationship with the client. Indeed,
in some cases the claim may be brought as a contract claim as well as a negligence claim and
the contract itself may not only create duties but limit them.

Lawyers may be liable to clients for reasons having nothing to do w/ malpractice. Negligent
driving that injures a client is surely actionable, and so is assault. Lawyers may be chargeable
w/ defamation, and malicious prosecution, or indeed, any tort. But while the lawyer-client
relationship may facilitate such torts, they are not ordinarily part of the representation and
not malpractice.

2. Forms and examples. For example, fiduciary breach aside, lawyers may fail to recognize a
cause of action or may fail to file a claim or defense within the time limits imposed, may
inadequately prepare for trial, or use substandard strategies or techniques in trial itself.

However, malpractice claims are not confined in litigation malpractice, they can arise in any
kind of representation. Lawyers may be negligent in drafting or recording documents in
search of records, negotiating a settlement or advising its acceptance, in giving advice, and
possibly even in accepting a case beyond their experience and competence.

3. Elements and rules of liability. The plaintiff must first show a lawyer-client relationship.
The contract of relationship establishes the general duty to provide professional care. Given
the relationship, the commercial loss rule does not apply to eliminate liability for negligence.
The remaining elements are those of other negligence cases. The plaintiff must prove a
breach of duty, cause in fact, proximate cause, and damages.

Additional elements may be required in the case of criminal malpractice. The duties include
the duties of professional care and competence, but also includes the special duties of
fiduciaries and the duty to provide certain information to the client, somewhat analogous to
the obligation of medical practitioners to provide patients w/ information.

Lawyers are also liable vicariously for the negligence of their general partners committed
w/in the scope of their agency, and w/in limits, for the negligence of outside counsel they
have associated in the case.

4. Standard of care. Subject to slight variations in expression, attorneys owe clients the skill,
care, knowledge, and diligence exercised by reasonable and prudent lawyers in similar
circumstances.

Under this standard, not every professional mistake is negligence. in fact, courts often say
that lawyers are not liable for good faith errors in lawyer liability. The error of judgment
statement seems to apply only when reasonable professional judgments could differ, in
which case the lawyer simply has not violated the professional standard.

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 The standard is the usual objective standard. Good faith of the lawyer is no defense if he
violates the standard. As with medical malpractice, specialists may be held to the standard of
their speciality (sic?) rather than to the standard of lawyers generally.

5. Expert testimony requirement. Courts now not only admit but generally require expert
testimony to show the standard of care. If its not obvious that the lawyers conduct breached
the standard, then expert testimony may be required to show that breach as well. Similarly, if
the defendant is a specialist, a witness who knows the specialists standards is required or
appropriate.

Courts seldom mention res ipsa loquitur in lawyer malpractice cases except occasionally to
say that it does not apply. However, the courts do recognize a common knowledge exception
to the expert testimony requirement to cover the case in w/c the standard and its breach are
so clear that no expert testimony is required to establish them. That is the case w/ one of the
most routine kinds of malpractice, failures to act w/in the time permitted, as where the
lawyer w/ opportunity to do so fails to file a suit w/in the statute of limitations period.

6. Causation element.- Beyond establishing the attorneys negligence, the legal malpractice
plaintiff must show by a preponderance of the evidence that if it had not been for that
attorneys negligence, he would have prevailed in the underlying action.

** In essence, the legal malpractice action requires the resolution of two conflicts: the initial
lawsuit and the malpractice action in essence, a trial w/in a trial.

7. Lawyers tort liability to non-clients- Non clients refer to any person other than those who
engaged the attorney as their counsel.

In most jurisdictions, the rule remains that absent fraud or other bad faith, and attorney is
not liable for negligent conduct to non-client third party. In other words, there is no duty
owed to a non-client to avoid negligently inflicted economic harm.

** Where an attorney understood that the clients intent was to benefit a third party, in some
contexts that third party is permitted to sue for legal malpractice. The situation often arises
in the context of wills, where an intended beneficiary cause is deprived of receiving that
which the deceased testator intended because of the negligence of an attorney or notary.
P.353

** The attorneys preoccupation or concern with the possibility of claims based on mere
negligence by any with whom his client might deal would prevent him from devoting his
entire energies to his clients interests.

A related rationale is that if a third party seeks to validate information, he can hire his own
attorney with whom he will be in privity.

Illustrative cases. p.353

Liability of public officers for tortious acts.

1. Acts done within the scope of official authority. A public officer whether judicial, quasi-
judicial, or executive, is generally not personally liable to one injured in consequence of an
act performed within the scope of official authority, in line of official duty.
2. Acts done without or in excess of official authority. If a public officer exceeds the power
conferred on him by law, he cannot shelter himself by the plea that he is a public agent acting
under color of his office, or that the damage was caused by an act done or omitted under

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 color of office, and not personally. In the acts of the law, hi acts then are wholly without
authority.

This principle of personal liability has been applied to cases, where a public officer removes
another officer or discharges an employee or refuses to reinstate him wrongfully or illegally
or in bad faith.

Article 2180. The obligation imposed by article 2176 is demandable not only for one's own
acts or omissions, but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the damages
caused by the minor children who live in their company.

Guardians are liable for damages caused by the minors or incapacitated persons who are
under their authority and live in their company.

The owners and managers of an establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the branches in which the latter are
employed or on the occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in
any business or industry.

The State is responsible in like manner when it acts through a special agent; but not when
the damage has been caused by the official to whom the task done properly pertains, in
which case what is provided in article 2176 shall be applicable.

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages
caused by their pupils and students or apprentices, so long as they remain in their custody.

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)

Principle of vicarious liability

1. Concept Under this principle, a person is made liable not only for torts committed by himself, but
also for torts committed by others with whom he has certain relationship and for whom he is
responsible, subject to certain conditions. It is called the doctrine of imputed negligence under Anglo-
American law.

Negligence is imputed if the tortfeasor is different from the person who is being held responsible.

The direct and primary responsibility imposed by Art. 2180 is an application of this principle. It is an
exception to the principle that no person can be held liable for the acts or omissions of another, and
therefore, it cannot be extended to persons not included in this article. The liability imposed by art.
2180 is solidary. (inferred from the 1st paragraph) Moreover, under Art. 2194, the responsibility of
two or more persons who are liable for quasi delict is solidary.

Art. 2180 makes no distinction whether the injured party or claimant is an employee or a third
person.

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2. Basis of liability. - The liability is based on the theory of presumed negligence, in contrast with the
American doctrine of respondeat superior or command responsibility under w/c the negligent act or
omission of the servant (employee) is conclusively presumed negligence of the master (employer).
This doctrine bases the responsibility of the master ultimately on his own negligence and not that of
the servant. He who does a thing thru another does it himself. The employer cannot escape liability
by interposing the defense of due diligence in the selection and supervision of the negligent
employee.

The liability under 2180 is rather based on the principle of pater familias according to which the
persons mentioned therein becomes liable to the party aggrieved by their failure to exercise due care
and vigilance over the acts of subordinates in their service or supervision to prevent the damage.

Negligence is imputed to them by law unless they overcome the presumption of its existence. The
negligence of the actor is only presumptively the negligence of the person responsible for him. The
aggrieved party may sue directly the person responsible for the actor.