Torts Reviewer

TORTS MIDTERM REVIEWER

Art. 1156. An obligation is a juridical necessity to give, to do or not to do. Art. 1157. Obligations arise from:

(1) Law; (2) Contracts; (3) Quasi-contracts;

(4) Acts or omissions punished by law; and (5) Quasi-delicts.

Art. 1158. Obligations derived from law are not presumed. Only those expressly determined in this Code or in special laws are demandable, and shall be regulated by the precepts of the law which establishes them; and as to what has not been foreseen, by the provisions of this Book.

Art. 1159. Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith.

Art. 1160. Obligations derived from quasi-contracts shall be subject to the provisions of Chapter 1, Title XVII, of this Book.

Art. 1161. Civil obligations arising from criminal offenses shall be governed by the penal laws, subject to the provisions of Article 2177, and of the pertinent provisions of Chapter 2, Preliminary Title, on Human Relations, and of Title XVIII of this Book, regulating damages.

Art. 1162. Obligations derived from quasi-delicts shall be governed by the provisions of Chapter 2, Title XVII of this Book, and by special laws.

Tort – A civil wrong, other than breach of contract for which the court will provide a remedy in the form of an action for damages (Jarencio’s definition)

Atty. Abaño’s definition: A tort is an act which causes damage to another person. [Therefore, under his definition, a tort encompasses a broader concept than a quasi-delict; it also includes breach of contract and crimes] The tort is the cause, while the effect is manifested in damages.

Classes of Actions

1.

2.

3.

4.

1.

2.

Problem: A bus falls off a cliff due to the driver’s fault. What actions may be filed by the heirs of the passengers who died in the accident?

Answer: Three actions may be filed based on culpa aquiliana, culpa contractual, and culpa criminal. The distinctions among the three are as follows:

CULPA AQUILIANA CULPA CONTRACTUAL CRIMINAL PROSECUTION OBJECT Complaint is against

negligence Violation of contract ofcarriage Criminal negligence ACTION Damages for

quasi-delict Breach of contract withdamages Criminal prosecution,which includes civil liability under Art. 100 of the RPC

AGAINST Driver,

Bus Company, or Both

Employer bus company Driver

QUANTUM OF

EVIDENCE Preponderance ofEvidence *once the driver is proven negligent, employer is presumed negligent (rebuttable presumption)

Preponderance of

Evidence Proof beyondreasonable doubt

DEFENSES Exercise of ordinary diligence on the part of the driver;

Exercise of diligence in the selection and supervision of the driver on the part of the employer

Exercise of

extraordinary diligence (in contract of carriage, the diligence required of the common carrier is extraordinary)

If driver cannot pay the civil damages, the employer is subsidiarily liable. The employer does not have any defense in this case. The negligence of the employee is conclusive as to the employer for purposes of subsidiary liability

Note: You can file more than one of these cases. You can file any or all, depending on the circumstances. The only limitation is against double recovery. (See Imson case).

CASES Cancio v. Isip

Cancio filed 3 counts of violation of BP22 against Isip, who had issued 3 bad checks. The case was dismissed. Subsequently, 3 cases for estafa were filed. The case was dismissed again. Cancio then filed a civil case for collection of sum of money to recover the value of the 3 checks from Isip. Isip moved to dismiss on the ground that the action is barred by res judicata and that Cancio was guilty of forum shopping.

ISSUES:

1. Whether the civil action for collection is barred by res judicata. 2. Whether there was forum shopping.

HELD: No to both.

An act or omission causing damage to another may give rise to two separate civil liabilities: 1. ex delicto under Art. 100 of the RPC; and

2. independent civil liabilities such as:

a. those not arising from an act or omission complained of as a felony, such as culpa contractual, violations of Articles 31, 32, and 34 of the Civil Code, and culpa aquiliana under Article 2176 of the Civil Code;

b. where the injured party is granted a right to file an action independent and distinct from the criminal action (ex: Art. 33 of the Civil Code)

Either may be enforced against the offender, but the offended party cannot recover damages twice for the same act or omission or under both causes. Under the Rules on Criminal Procedure, civil liability ex delicto is deemed instituted with the criminal action, but the offended party may file the separate civil action before the prosecution starts to present evidence. However, the independent civil actions may be filed separately and prosecuted independently even without any reservation in the criminal action.

In this case, the basis of the complaint is culpa contractual. It is an independent civil action which is based on Isip’s breach of a contractual obligation. This may proceed independently of the criminal proceedings, regardless of the result of the latter. There is no res judicata because there is no identity of causes of action.

Imson v. CA

This case arose from a vehicular collision involving Imson’s car and a truck registered under the names of FNCB and Holiday Hills. The collision seriously injured Imson and totally wrecked his car. Imson filed a complaint for damages against:

1. the owners of the truck 2. the truck driver

3. the beneficial owners of the truck 4. the truck insurer

All the defendants, except the insurer, defaulted. Imson and the insurer entered into a compromise, whereby the insurer paid him 70K in full settlement of his claims against the insurer. The RTC thus dismissed the claim against the insurer.

Holiday Hills, as owner of the truck, then moved to dismiss the case against all the other defendants on the ground that they were all indispensable parties under a common cause of action. It argued that the dismissal of the case against the insurer must result in the dismissal of the case against all of them.

ISSUE: Whether the action should be dismissed as against the other defendants.

HELD: No. The action should not be dismissed against the other defendants because there is no identity in the causes of action against them.

The rule is where the complaint alleges a common cause of action against defendants who are all indispensable parties to the case, its dismissal against any one of them by virtue of a compromise agreement with the plaintiff results in a dismissal of the case against the others, including those in default. For this doctrine to apply, however, the requisites are:

1. there must be a common cause of action; and 2. all defendants are indispensable parties.

This doctrine is NOT applicable in this case because there is no identity of cause of action. The causes of action against each of the defendants are different. They are as follows:

1. against the driver: quasi-delict under 2176

2. against the owners of the truck: quasi-delict under 2180 (vicarious liability)

3. against the insurance company: contract (third party liability clause of its insurance contract with the owners of the truck allows the third party to collect directly from the insurer even if there is really not contractual relationship between them).

Moreover, the defendants are not all indispensable parties. The truck driver is the only one who is indispensable. All the others are merely necessary or proper parties.

BLTB v. CA

Quasi-delict is different from criminal negligence; it is an independent source of obligation. Aboitiz Shipping v. CA

A common carrier is bound to observe extraordinary diligence. If a passenger dies or is injured in the course of the voyage, there is a presumption of fault or negligence. This gives rise to an action for breach of contract of carriage.

In an action based on contact of carriage, the court need not make an express finding or fault or negligence in order to hold the carrier liable. By the contract of carriage, the carrier assumes the express obligation to transport the passenger to his destination safely and to observe extraordinary diligence. Any injury that might be suffered by the passenger is right away attributable to the fault or negligence of the carrier.

II. QUASI-DELICT 1. Elements

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

The elements of a quasi-delict are: 1. Fault or Negligence 2. Damage

3. Causal connection between the negligence and the damage

Problem: X was driving a car when he ran over a stone. The stone hit a pedestrian on the head. The pedestrian died. Is X liable for quasi-delict?

Answer: No, because there was no negligence on the part of X.

Problem: A supplier’s employees went on strike, as a result of which the supplier failed to deliver his goods to his client. Can the client sue the supplier for quasi-delict?

Answer: No. Although there was damage, there was no negligence. [Client should sue based on breach of contract instead]

CASES:

Andamo v. IAC

Emmanual and Natividad Andamo owned a parcel of land adjacent to that of the Missionaries of Our Lady of La Sallette. Within the land or Our Lady, waterpaths and an artificial lake were constructed, allegedly inundating and eroding the Andamos’ land. This caused a young man to drown, damaged the Andamos’ crops and fences, and endangered their lives. The Andamos instituted a criminal action against the officers and directors of Our Lady for destruction by means of inundation under Art. 324 of the RPC. Subsequently, they filed a civil case for damages against the respondents. Upon motion of respondents, the civil case was dismissed for lack of jurisdiction, since the criminal case instituted ahead of the civil case was still unresolved. This was based on the provision of the Rules of Court which provides that criminal and civil actions arising from the same offense may be instituted separately, but after the criminal action has been commenced, the civil action cannot be instituted until final judgment has been rendered in the criminal action.

ISSUE: Whether the civil action should have been dismissed.

HELD: No. The civil action should not have been dismissed since it was based, not on crime, but on quasi-delict. All the elements of a quasi-delict are present:

1. damages suffered by the plaintiff;

2. fault or negligence of the defendant or some other person for whose acts he must respond; and 3. connection of the cause and effect between the fault or negligence of the defendant and the damages

incurred by the plaintiff.

In this case, the waterpaths and contrivances built by respondent are alleged to have inundated the land of petitioners. This was caused by the failure of the defendant to install drainage pipes that could have prevented the inundation. There is therefore a causal connection between the act of building the waterpaths without providing for an adequate drainage system and the damage sustained by the petitioners.

Article 2176 covers not only acts “not punishable by law” but also acts criminal in character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed to recover damages on both scores and would only be entitled to the bigger award of the two.

FGU Insurance v. CA

A car owned by Soriano and being driven by Jacildone collided with another car owned by Filcar and rented and driven by Dahl-Jensen, a foreigner. FGU Insurance Corp., Soriano’s insurer, paid Sorian 25K for the damage. By way of subrogation, FGU sued Dahl-Jensen, Filcar, and Fortune Insurance (insurer of Filcar) for quasi-delict. The case was dismissed by the RTC on the ground of failure of FGU to substantiate the claim for subrogation. The CA affirmed by based on another ground: only the fault or negligence of Dahl-Jensen (who was dropped from the complaint because summons could not be served on him) was sufficiently proved but not that of Filcar. There was therefore no cause of action against Filcar for quasi-delict.

ISSUE: Whether the registered owner of a vehicle is liable for damages suffered by third persons although the vehicle is leased to another.

HELD: No. Filcar is not liable. To sustain a claim based on quasi-delict, the following requisites must concur: 1. damages suffered by the plaintiff;

2. fault or negligence of the defendant or some other person for whose acts he must respond; and 3. connection of the cause and effect between the fault or negligence of the defendant and the damages

incurred by the plaintiff.

In this case, petitioner failed to prove the fault or negligence of Filcar. The negligence was solely attributable to Dahl-Jensen, thus making the damage his personal liability. Filcar had not participation therein. Article 2180 on vicarious liability of owners of motor vehicles is not applicable since there is no employer-employee relationship between Filcar and Dahl-Jensen.

Equitable Lease v. Suyom

A road tractor driven by Raul Tutor slammed into a house/tindahan. Three persons were pinned to death under the engine of the tractor; four were injured. Tutor was charged with and convicted of reckless imprudence resulting in multiple homicide and multiple physical injuries.

Since the Official Receipt and Certificate of Registration of the vehicle showed the registered owner to be

“Equitable Leasing/leased to Edwin Lim,” respondents filed a complaint for damages against Equitable, Tutor, and Ecatine [seems to be a corporation of Edwin Lim]. Tutor, Lim, and Ecatine were subsequently dropped from the complaint because they could not be found.

Equitable, in its answer, raised the defense that the vehicle had already been sold to Ecatine and that Equitable was no longer in possession and control thereof at the time of the incident. It also claimed that Tutor was an employee of Ecatine, not Equitable.

It seems that Equitable and Lim had a finance lease agreement whereby Equitable would remain the registered owner until the vehicle was fully paid by Lim. In this case, the vehicle was fully paid and a deed of sale had already been executed. However, there was failure to register the deed of sale with the LTO.

The RTC and CA found Equitable to be liable. ISSUE: Whether Equitable is liable.

HELD: Equitable is liable.

It is liable because it was the registered owner at the time of the accident. The registered owner is the lawful operator insofar as third persons are concerned and consequently, it is directly and primarily responsible for the consequences of its operation. In contemplation of law, the owner/operator of record is the employer of the driver, the actual operator and employer being considered as merely its agent. The same principle applies even if the registered owner of any vehicle does not use it for public service.

This is not inconsistent with the earlier FGU case, wherein the owner of the vehicle was absolved from liability because of the absence of the vinculum juris of an employer-employee relationship between the owner and the driver.

In the present case, though in fact, there is no employer-employee relationship between Equitable and Tutor, the law deems the registered owner to be the employer of the driver, and the actual operator is deemed to be the owner’s agent. Again, under law, Equitable is the owner, Ecatine is Equitable’s agent, Tutor is Equitable’s employee.

The failure of Equitable and/or Ecatine to register the sale with the LTO should not prejudice respondents, who have the legal right to rely on the legal principle that the registered vehicle owner is liable for the damages caused by the negligence of the driver.

2. No Double Recovery Rule

Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.

Broader concept of Civil Liability

A single act can give rise to two kinds of liability – civil liability for quasi-delict and liability for crime. Under the liability for crime, the defendant has two kinds of liability – criminal liability and civil liability. This is illustrated by the following diagram:

Civil liability

| |

Quasi-Delict Crime

| |

Criminal liability Civil liability

Problem: X filed a claim for 100K in damages in an action for quasi-delict. The judge awarded 50K. Can X filed a criminal action to recover the remaining 50K?

Answer: No, this would violate the principle of res judicata. The victim had the opportunity to present evidence in the criminal case. If he files another case, he will be merely presenting the same evidence.

CASES:

Jarantilla v. CA

Jose Kuan Sing was crossing the street when he was sideswiped by a Volkswagen Beetle driven by Edgar Jarantilla.

Sing instituted a criminal action against Jarantilla for serious physical injuries through reckless imprudence. Sing intervened in the prosecution through a private prosecutor and did not reserve his right to institute a separate civil action. Jarantilla was acquitted because of reasonable doubt.

Sing subsequently instituted a civil action for damages involving the same subject matter and act complained of as in the criminal case.

The trial court found in favor of Sing and awarded actual and moral damages, attorney’s fees, and costs. The CA affirmed.

ISSUE: Whether Sing could have filed the separate civil action despite Jarantilla’s acquittal in the criminal action.

HELD: Yes, the civil action was properly filed.

The same act or omission (in this case, the negligent sideswiping of private respondent) can create two kinds of liability on the part of the offender: civil liability ex delicto and civil liability ex quasi delicto. Since the same negligence can give rise either to a delict or crime or to a quasi-delict or tort, either of these two types of civil liability may be enforced against the culprit, subject to the caveat under Article 2177 of the Civil Code that the offended party cannot recover damages under both types of liability.

The only instance where a civil action cannot be instituted after the dismissal of the criminal case is where such dismissal was accompanied by a statement of the court declaring that the act complained of never happened.

Atlantic Gulf and Pacific v. CA This is a resolution of a MR.

The Castillos filed an action for damages against AG&P alleging that the latter’s operations on the former’s property caused the soil to become “infertile, salty, unproductive and unsuitable for agriculture.” The Castillos also averred that AG&P’s heavy equipment was parked on the former’s land without rental having been paid.

The trial court granted damages for both “the damage to the land” and “rentals for the same property.” ISSUE: Whether the grant of the damages amounts to double recovery.

HELD: It does not amount to double recovery.

It is clearly apparent that AG&P was guilty of two culpable transgressions on the property rights of the Castillos, that is, for the ruination of the agricultural fertility or utility of the soil of their property and, further, for the unauthorized use of said property as a dump site or depot for petitioner's heavy equipment and trucks. Damages were correctly awarded for the destruction of the land and for the reasonable value for the use of the premises.

Article 2177 provides that the plaintiff cannot recover damages twice for the same act or omission of the defendant. In this case, there were two separate acts or omissions.

III. NEGLIGENCE 1. Concept of Negligence

Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required 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.

Negligence – Want of care required by the nature of the obligation and the circumstances of the persons, time, and place.

CASES

Citytrust v. IAC

Emme Herrero issued several postdated checks from her account with Citytrust. She deposited cash in order to cover the checks. However, in filling up the deposit slip, she omitted a zero and wrote 2900823 instead of 29000823. Her checks were dishonored.

Herrero filed a complaint for damages against Citytrust. The trial court dismissed the complaint. The CA reversed and awarded nominal and temperate damages and attorney’s fees.

ISSUE: Whether Citytrust is liable for damages. HELD: Citytrust is liable.

Banking is a business affected with public interest and because of the nature of its functions, the bank is under obligation to treat the accounts of its depositors with meticulous care, always having in mind the fiduciary nature of their relationship.

Even if the account number were erroneous, Herrero’s name was clearly written on the deposit slip. The teller should have noticed that there were only seven numbers instead of eight. Besides, the use of numbers is simply for the convenience of the bank and the depositor’s name should still be controlling.

In fact, there were other instances where Herrero put down the wrong account number but the deposits were still properly made. This indicates that there are ways and means whereby deposits with erroneous account numbers can still be credited to the proper account. It is the bank’s obligation to see to it that all funds invested with it are properly accounted for and duly posted in its ledgers.

The CA, however, erred in awarding nominal and temperate damages concurrently; the two are incompatible. Nominal damages are merely to recognize the violation of a right and not to indemnify. Temperate damages are designed to indemnify one for pecuniary loss the amount of which cannot be proved with reasonable certainty. Only nominal damages are warranted in this case.

Reyes v. CA, FEBTC

Reyes and Puyat-Reyes, as Philippine Racing Club representatives, were to attend a racing conference in Sydney. In order to pay for the conference fees, they sent the club’s cashier to FEBTC to apply for a foreign exchange demand draft for AU$1610, payable to the conference organizer.

The application was denied at first because FEBTC did not have an account in any Sydney bank. However, a roundabout way was found whereby the remittance of the money could be achieved. FEBTC would draw a demand draft against Westpac Bank in Sydney and the latter would reimburse itself from FEBTC’s account in Westpac NY. This arrangement has been resorted to since the 1960s and there has never been a problem.

When the conference organizer presented the demand draft, it was dishonored. However, FEBTC’s account in Westpac NY had been debited. In response to the organizer’s complaint of the dishonor, FEBTC informed Westpac Sydney to reimburse itself from FEBTC’s Westpac NY account. FEBTC also instructed Westpac NY to honor the claim for reimbursement. Despite this, the draft was dishonored a second time.

When the Puyats arrived in Sydney to register [they arrived separately], they were denied because the drafts had been dishonored twice. This allegedly caused them much humiliation, shock, trembling legs, etc. However, after agreeing to pay in cash, they were admitted to the conference.

Upon getting back to Manila, the Puyats filed a complaint for damages against FEBTC claiming that as a result of the dishonor, they were exposed to unnecessary shock, social humiliation, and deep mental anguish in a foreign country, and in the presence of an international audience.

ISSUE: Whether FEBTC is liable for damages. HELD: It is not liable.

The degree of diligence required of FEBTC, in this case, is that degree of diligence expected of an ordinary prudent person under the circumstances obtaining. The rule that a bank, due to the nature of its relationship with the client, must exercise extraordinary diligence applies only when the bank is acting in its fiduciary capacity, as was seen in the Citytrust case. In the present circumstance, the relationship between FEBTC and the Puyats was merely that of seller and buyer, with the subject matter being a demand draft.

That ordinary diligence was observed is evident from the numerous follow ups that FEBTC undertook in order to get the demand draft paid. It did all that it could have reasonably done. The reason the demand draft was

dishonored was because Westpac Sydney mistakenly read FEBTC’s cable message to it [a 1 was read as a 7]. As a result, Westpac Sydney did not recognize the cable message as a request for a demand draft.

Adzuara v. CA

Adzuara, a law student, was driving his Galant along QC Ave.; in the car with him were his two friends. He collided with a Corona driven by Martinez. It appears that Martinez was executing a U-turn when Adzuara suddenly rammed the side of his car. The Corona was flung 20 meters from the point of impact and it landed atop the center island of QC Ave. Martinez filed a complaint for reckless imprudence resulting in damage to property with less serious physical injuries [Martinez’s daughter was confined]. The right to institute a separate civil action was reserved.

The RTC found Adzuara guilty after the following facts were established:

• Adzuara was going much faster than the 40 kph. he claimed. This is evident from the damage to the Corona and from the distance it was flung.

• Adzuara had a red light. Martinez had a green light.

• Adzuara did not stop at the last clear chance when he saw that Martinez had almost completely negotiated the U-turn.

ISSUE: Whether Adzuara is guilty of negligence. HELD: Guilty.

Negligence is the want of care required by the circumstances. It is a relative or comparative, not an absolute, term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require.

What degree of care and vigilance then did the circumstances require? At half past 1:00 o'clock in the morning along an almost deserted avenue, ordinary care and vigilance would suffice. This may consist of keeping a

watchful eye on the road ahead and observing the traffic rules on speed, right of way and traffic light. The claim of petitioner that Martinez made a swift U-turn which caused the collision is not credible since a U-turn is done at a much slower speed to avoid skidding and overturning, compared to running straight ahead. Nonetheless, no evidence was presented showing skid marks caused by the car driven by Martinez if only to demonstrate that he was driving at a fast clip in negotiating the U-turn. On the other hand, the speed at which petitioner drove his car appears to be the prime cause for his inability to stop his car and avoid the collision. His assertion that he drove at the speed of 40 kph. is belied by Martinez who testified that when he looked at the opposite lane for any oncoming cars, e saw none; then a few seconds later, he was hit by Adzuara's car. The extent of the damage on the car of Martinez and the position of the cars after the impact further confirm the finding that petitioner went beyond the speed limit required by law and by the circumstances.

Picart v. Smith

The test for determining negligence: Would a prudent man in the position of the person to whom the negligence is attributed foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes a duty on the actor to refrain from that course or to take precaution against its mischievous results, and the failure to do so constitutes negligence. Reasonable foresight of harm, followed by the ignoring of the admonition of this provision, is the constitutive fact in negligence.

2. Negligence as Proximate Cause

Proximate Cause – that cause which, in the natural and continuous sequence, unbroken by an efficient supervening cause, produces the injury and without which the injury would not have occurred.

Subido v. CA

This case involves an accident between a truck [or bus] belonging to Laguna Tayabas Bus Company (LTB) and driven by Mudales and a truck owned by Sabido and driven by Lagunda.

The two vehicles were going in opposite directions when they met at a curve in the road. Custodio, a passenger of LTB was hanging [sabit] on the left side of the vehicle. He died after being sideswiped by Sabido’s truck.

The CFI held the vehicle owners and the drivers solidarily liable. LTB and its driver were liable for violating the contract of carriage; Sabido and his driver were liable for quasi-delict.

ISSUE: Whether Sabido and his driver were guilty of negligence; whether they should be held solidarily liable with LTB.

HELD: They are both guilty of contributory negligence.

Though LTB and its driver were guilty of negligence for allowing Custodio to hang from the left side of the bus, Sabido and his driver were guilty of contributory negligence because the truck was running at a considerable speed, despite the fact that it was negotiating a sharp curve, and, instead of being close to its right side of the road, said truck was driven on its middle portion and so near the passenger bus coming from the opposite direction as to sideswipe a passenger riding on its running board.

Though the negligence of LTB and its driver are independent from the negligence of Sabido and his driver, both acts of negligence are the proximate cause of the death of Custodio. In fact, the negligence of the first two would not have produced this result without the negligence of Sabido and his driver. What is more, Sabido’s driver’s negligence was the last, in point of time, for Custodio was on the running board of the carrier's bus sometime before petitioners' truck came from the opposite direction, so that, in this sense, Sabido’s truck had the last clear chance.

Even though LTB’s liability arises from breach of contract and Sabido’s arises from quasi-delict, they are solidarily liable because the rule is that where both negligent acts, in combination, are the direct and proximate cause of a single injury to a third person and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage might have resulted from the acts of the other tort-feasor.

Petitioners were being charged by MERALCO P415,317.66 for allegedly unregistered electric consumption (URE) for the period of November 1990 to February 1991. MERALCO justified its demand on the ground that the URE was due to defects of the electric meter. When petitioners refused to pay, MERALCO notified them of disconnection which prompted petitioners to file for preliminary injunction and/or TEMPORARY

RESTRAINING ORDER which was granted.

ON July 1992, petitioners received another demand letter, this time requiring them to pay P89,710.58 for URE from July 1991 to April 1992, the deficiency again due to the defective meter. Petitioners again filed for the consolidation of the two cases, and after trial, the injunction was made permanent. CA reversed the decision of RTC

ISSUE: Whether petitioners should be made to pay the said amounts for their unregistered electric consumption during the said periods which was due to the defects of the electric meter

HELD: No.

MERALCO’s failure to make the necessary repairs and replacement of the defective electric meter installed within the premises of petitioners was obviously the proximate cause of the instant dispute between the parties. Indeed, if an unusual electric consumption was not reflected in the statements of account of petitioners, MERALCO, considering its technical knowledge and vast experience in providing electric service, could have easily verified any possible error in the meter reading. In the absence of such a mistake, the electric meters themselves should be inspected for possible defects or breakdowns and forthwith repaired and, if necessary, replaced. Furthermore, if MERALCO discovered that contraptions or illegal devices were installed which would alter the result of the meter reading, then it should have filed the appropriate criminal complaint against petitioners.

Notice of a defect need not be direct and express; it is enough that the same had existed for such a length of time that it is reasonable to presume that it had been detected, and the presence of a conspicuous defect which has existed for a considerable length of time will create a presumption of constructive notice thereof. Hence, MERALCO's failure to discover the defect, if any,

considering the length of time, amounts to inexcusable negligence.

Furthermore, that as a public utility, MERALCO has the obligation to discharge its functions with utmost care and diligence

The liability of petitioners for consumed but unrecorded electricity must therefore be limited by reason of MERALCO’s negligence- only the estimated consumption on a three-month average before the controversial period (P168,342.75).

Ermitano v. CA, BPI

Luis Ermitano was a credit cardholder together with his wife Manuelita who had an extension, in BPI with a credit limit of 10,000 which they often exceeded and BPI never seemed to have minded for the past 2 years.

Manuelita’s bag one day was snatched, and that night she informed by telephone BPI of the loss. This was followed by a letter the next day, surrendering her husband’s card as well, stating that she shall not be responsible for any and all charges incurred after August 29,1989 (the day of loss), and sought for replacement cards instead.

However in their monthly billing statement the thief went on some kind of a shopping spree amounting to 3,ooo (that’s double a social sin for you!) So she wrote again disclaiming responsibility.

BPI pointed out the stipulation in the contract they had signed stated

"In the event the card is lost or stolen, the cardholder agrees to immediately report its loss or theft in writing to BECC ... purchases made/incurred arising from the use of the lost/stolen card shall be for the exclusive account of the cardholder and the cardholder continues to be liable for the purchases made through the use of the lost/stolen BPI Express Card until after such notice has been given to BECC and the latter has communicated such loss/theft to its member establishments."

Luis threatened that such was a contract of adhesion and that they’d sue for damages if BPI still insisted on having them pay when they already complied with the requirement of notifying them on time and should thus be absolved from any liability.

Despite their refusal to pay, their cards were still renewed and some time in 1991, when Luis was paying for gas, lo and behold his card was dishonored! BPI informed them that they had exceeded their credit limit and because inclusive in their monthly bill, the unauthorized payments from his lost card were still carried over. So Luis sued, and won, CA reversed

ISSUE: Whether petitioners should be liable for the unauthorized payments in their credit card until such a time the bank had been able to notify all its member establishments even when they had already exercised due diligence in complying promptly with the requirement of notifying BPI of the theft.

HELD: No.

Prompt notice by the cardholder to the credit card company of the loss or theft of his card should be enough to relieve the former of any liability occasioned by the unauthorized use of his lost or stolen card.

The questioned stipulation in this case, which still requires the cardholder to wait until the credit card company has notified all its member-establishments, puts the cardholder at the mercy of the credit card company which may delay indefinitely the notification of its members to minimize if not to eliminate the possibility of incurring any loss from unauthorized purchases. Or, as in this case, the credit card company may for some reason fail to promptly notify its members through absolutely no fault of the cardholder. To require the cardholder to still pay for unauthorized purchases after he has given prompt notice of the loss or theft of his card to the credit card company would simply be unfair and unjust.

Benguet Electric v CA

Jose Bernardo managed a stall at the Baguio City meat market. On 14 January 1985 at around 7:50 in the morning, Jose together with other meat vendors went out of their stalls to meet a jeepney loaded with slaughtered pigs in order to select the meat they would sell for the day. Jose was the very first to reach the parked jeepney. Grasping the handlebars at the rear entrance of the vehicle, and as he was about to raise his right foot to get inside, Jose suddenly stiffened and trembled as though suffering from an epileptic seizure. Romeo Pimienta who saw Jose thought he was merely joking but noticed almost in disbelief that he was already turning black. In no time the other vendors rushed to Jose and they discovered that the antenna of the jeepney bearing the pigs had gotten entangled with an open electric wire at the top of the roof of a meat stall. Pimienta quickly got hold of a broom and pried the antenna loose from the open wire. But shortly after, Jose released his hold on the handlebars of the jeep only to slump to the ground.

His spouse and children filed a claim against BENECO, who then in turn filed a third party complaint against the owner of the jeep, who according to BENECO was the proximate, if not, sole cause of the death ISSUE: Whether BENECO was negligent.

HELD: Yes.

There is no question that as an electric cooperative holding the exclusive franchise in supplying electric power to the towns of Benguet province, its primordial concern is not only to distribute electricity to its subscribers but also to ensure the safety of the public by the proper maintenance and upkeep of its facilities. It is clear to then that BENECO was grossly negligent in leaving unprotected and uninsulated the splicing point between the service drop line and the service entrance conductor, which connection was only eight (8) feet from the ground level, in violation of the Philippine Electrical Code. By leaving an open live wire

unattended for years, BENECO demonstrated its utter disregard for the safety of the public. Indeed, Jose Bernardo's death was an accident that was bound to happen in view of the gross negligence of BENECO. BENECO theorizes in its defense that the death of Jose Bernardo could be attributed to the negligence of Canave, Jr., in parking his jeepney so close to the market stall which was neither a parking area nor a loading area, with his antenna so high as to get entangled with an open wire above the Dimasupil store. But this line of defense must be discarded.

Canave's act of parking in an area not customarily used for that purpose was by no means the independent negligent act adverted to by BENECO in citing Manila Electric Co. v. Ronquillo. Canave was well within his right to park the vehicle in the said area where there was no showing that any municipal law or ordinance was violated nor that there was any foreseeable danger posed by his act. One thing however is sure, no accident would have happened had BENECO installed the connections in accordance with the prescribed vertical clearance of fifteen (15) feet.

St. Mary’s Academy of Dipolog City conducted an enrollment drive for the school year 1995-1996. A facet of the enrollment campaign was the visitation of schools from where prospective enrollees were studying. As a student of St. Mary’s Academy, Sherwin Carpitanos was part of the campaigning group. On the fateful day, Sherwin, along with other high school students were riding in a Mitsubishi jeep owned by defendant Vivencio Villanueva on their way to Larayan Elementary School. The jeep was driven by James Daniel II then 15 years old and a student of the same school. Allegedly, the latter drove the jeep in a reckless manner and as a result the jeep turned turtle.

Sherwin Carpitanos died as a result of the injuries he sustained from the accident. The parents claimed damages from the school, and won.

ISSUE: Whether St. Mary’s should be liable for the death of a student as a result of a car accident in an authorized school activity

HELD: No.

The Court of Appeals mistakenly held petitioner St. Mary’s Academy liable for the death of Sherwin Carpitanos under Articles 218[7] and 219[8] of the Family Code, pointing out that petitioner was negligent in allowing a minor to drive and in not having a teacher accompany the minor students in the jeep.

Under Article 218 of the Family Code, the following shall have special parental authority over a minor child while under their supervision, instruction or custody: (1) the school, its administrators and teachers; or (2) the individual, entity or institution engaged in child care. This special parental authority and responsibility applies to all authorized activities.

Under Article 219 of the Family Code, if the person under custody is a minor, those exercising special parental authority are principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor while under their supervision, instruction, or custody.

However, for petitioner to be liable, there must be a finding that the act or omission considered as negligent was the proximate cause of the injury caused because the negligence must have a causal connection to the accident.

In this case, the respondents failed to show that the negligence of petitioner was the proximate cause of the death of the victim.

In their comment to the petition, respondents Daniel spouses and Villanueva admitted the documentary exhibits establishing that the cause of the accident was the detachment of the steering wheel guide of the jeep. Hence, the cause of the accident was not the recklessness of James Daniel II but the mechanical defect in the jeep of Vivencio Villanueva.

Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the jeep of respondent Vivencio Villanueva. It was Ched Villanueva, the grandson, who had possession and control of the jeep. He was driving the vehicle and he allowed James Daniel II, a minor, to drive the jeep at the time of the accident.

Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical detachment of the steering wheel guide of the jeep, must be pinned on the minor’s parents primarily. The negligence of petitioner St. Mary’s Academy was only a remote cause of the accident. Between the remote cause and the injury, there intervened the negligence of the minor’s parents or the detachment of the steering wheel guide of the jeep.

3. Proof of Negligence

Food Terminal Incorporated vs. CA. and Basic Foods Corp.

Food Terminal Incorporated (FTI) is engaged in the business of warehousing storage of goods or merchandise for compensation at its refrigerated warehouse in Taguig, Metro Manila. Basic Foods is engaged in the production of food and allied products.

In its manufacture of food, Basic Foods uses Red Star compressed yeast, which requires storage in a refrigerated space to avoid spoilage. It deposited 1,770 cartons of yeast with FTI for cold storage. 383 cartons worth P161k were damaged, allegedly because of FTI’s failure to maintain the proper temperature.

FTI claims that it exercised utmost diligence; that any damage sustained was due to the fault of Basic Foods; that under the contract, FTI would not be liable for damage to goods beyond its reasonable control; and that Basic Foods was estopped from filing the action because it acknowledged receipt of the yeast in good order. The RTC dismissed; the CA held that there was negligence.

ISSUE: Whether FTI was guilty of negligence in the storage of Basic Foods’ yeast. HELD: FTI was negligent.

In the first place, the issue is factual, thus, the ruling of the Court of Appeals is binding on the parties and may not be reviewed on appeal via certiorari.

In the second place, petitioner practically admitted that it failed to maintain the agreed temperature of the cold storage area at 2 to 4 degrees centigrade at all times, and this caused the deterioration of the yeast stored therein. Nonetheless, petitioner claimed that temperature was not the sole cause for the deterioration of respondent's goods. Since negligence has been established, petitioner's liability for damages is

inescapable. Morris v. CA

Morris and Whittier were American citizens employed in the Philippines. They were booked as first-class passengers on a 3:50 pm Scandinavian Airline System (SAS) flight from Manila to Tokyo. On the day of

departure, Morris and Whittier checked in at the airport at 3:10 pm. However, they were told that they could not be accommodated on the plane because their seats had been given to other passengers. Apparently, the economy class of the flight had been overbooked and the seats of the first class passengers who had not checked in at least 40 minutes before departure time were given to economy class passengers. Morris and Whittier filed a claim against SAS for moral and exemplary damages.

ISSUE: Whether Morris and Whittier are entitled to moral and exemplary damages. HELD: No, they are not.

In awarding damages for breach of contract of carriage, the breach must be wanton and deliberately injurious, or the one responsible acted fraudulently or with malice or bad faith. Where in breaching the contract of carriage, the defendant airline is not shown to have acted fraudulently or in bad faith, liability for damages is limited to the natural and probable consequences of the breach of obligation which the parties had foreseen or could have reasonably foreseen. Such liability does not include moral and exemplary damages. Moral damages may be recovered only where (a) the mishap results in the death of a passenger; and (b) it is proved that the carrier was guilty of fraud and bad faith even if death does not result. Bad faith does not simply connote bad judgment of negligence. It imports a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of known duty through some motive or interest or ill will that partakes of the nature of fraud.

In this case, what happened was attributable to the fault of Morris and Whittier, since they failed to check in on time. SAS could not be faulted for not entertaining their tickets and papers for processing, since the checking in of passengers for the flight was finished. There was no fraud or bad faith as would justify an award of moral damages.

4. Presumption of Negligence

The plaintiff may invoke the following principles in order to impute presumed negligence on the defendant: a. res ipsa loquitur

b. respondeat superior c. violation of traffic rules

d. dangerous weapons and substances

In these cases, there is no need for the plaintiff to show that the defendant was negligent. There is a rebuttable presumption of negligence on the part of the defendant. It is incumbent upon the defendant to prove that he exercised the degree of care required by the circumstances. If he fails to prove this, he shall be liable for damages.

a. Res ipsa loquitur

Statement of the rule: “Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things

does not happen if those who have its management or control use proper care, it affords reasonable evidence, in absence of explanation by defendant, that the accident arose from want of care.” Elements:

1. the thing which caused the injury is under the exclusive control of the defendant; 2. ordinarily, such event will not happen unless there is negligence;

3. defendant fails to give an explanation for the happening of the event. CASES:

Africa v. Caltex

A fire broke out at a Catex station in Manila. It started while gasoline was being hosed from a tank truck into the underground storage, right at the opening of the receiving tank where the nozzle of the hose was inserted. The fire spread to and burned several neighboring houses.

The owners of the burned properties filed a complaint for damages against Caltex, as the owner of the station, and Boquiren, as the agent in charge of operation.

ISSUE: Whether Caltex was negligent under the doctrine of res ipsa loquitur. HELD: Caltex was negligent.

First of all, it was necessary to rely on the doctrine of res ipsa loquitur because certain reports made by officers of the police and fire departments were ruled to be inadmissible in evidence for being hearsay.

Res ipsa loquitur is a rule to the effect that “Where the thing which caused the injury complained of is

shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in absence of explanation by defendant, that the accident arose from want of care.” The rule applies in this case. The gasoline station, with all its appliances, equipment and employees, was under the control of appellees. A fire occurred therein and spread to and burned the neighboring houses. The persons who knew or could have known how the fire started were appellees and their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable inference that the incident happened because of want of care.

The station is in a very busy district and pedestrians often pass through or mill around the premises. Aside from this, it is used as a carbarn for around ten taxicabs owned by Boquiren. Also, there is a store located around one meter from the hole of the underground tank. At this store, people hang out and possibly smoke cigarettes. It was even alleged that the fire was caused by a match which came into contract with the dense fumes.

Furthermore, the concrete walls adjoining the neighborhood are only 2 ½ meters high at most and cannot prevent the flames from leaping over it in case of fire.

Another issue was whether Caltex should be liable as the principal of Boquiren. It was held that Caltex was liable because there was an agency relationship and Boquiren was not an independent contractor. Caltex owned the station and exercised control over it.

Batiquin v. CA

Dr. Batiquin performed a Caesarean section on Mrs. Villegas. After the delivery of her baby, Mrs. Villegas began to suffer abdominal pains and fever. When, despite taking medication prescribed by Dr. Batiquin, she still did not get well, Mrs. Villegas consulted another doctor, Doctor Kho. Doctro Kho suggested that they open her up again. During surgery, Doctor Kho found lots of pus and several cysts in Mrs. Villegas’s ovaries. She then discovered a piece of rubber which seemed like a part of a rubber glove or a rubber drain stuck near Mrs. Villegas’s uterus. This rubber glove was the cause of the infection of Mrs. Villegas’s internal organs. After it was taken out, Mrs. Villegas regained her health.

Mrs. Villegas filed an action for damages against Dr. Batiquin. ISSUE: Whether Mrs. Villegas is entitled to damages.

HELD: Yes. The rule of res ipsa loquitur (the thing speaks for itself) is applicable in this case. Under this doctrine, the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that the injury was caused by an agency or instrumentality under the exclusive control and management of the defendant, and that the occurrence was such that in the ordinary course of things would not happen if reasonable care had been used. The doctrine of res ipsa loquitur 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 doctrine can be invoked only when, under the circumstances, direct evidence is absent and not readily available.

In this case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the caesarean section were under the exclusive control of Dr. Batiquin. Mrs. Villegas did not have any direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into her body, which could not have occurred unless through the intervention of negligence. Second, since aside from the caesarean section, Villegas underwent no other operation which could have caused the piece of rubber to appear in her uterus, it stands to reason that such could only have been a by-product of the caesarean section performed by Dr. Batiquin. Dr. Batiquin failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. She is therefore liable for negligently leaving behind a piece of rubber in Villegas’s abdomen and for all the adverse effects thereof.

Reyes v. Sisters of Mercy

Jorge Reyes had been suffering from recurring fever with chills for around 5 days. Home medication afforded him no relief so he went to Mercy Community Clinic. Because typhoid was common at the time, the Widal Test was performed. Jorge came out positive for typhoid. Dr. Blanes ordered that Jorge be tested for compatibility with chloromycetin, an antibiotic. Nurse Pagente administered the test. As there was no adverse reaction, Dr. Blanes administered 500 mg of the antibiotic. Another dose was given 3 hours later. Subsequently, Jorge developed high fever and experienced vomiting and convulsions. He then turned blue due to deficiency in oxygen – cyanosis – and died. The cause of death was stated to be “ventricular arrhythmia secondary to hyperpyrexia and typhoid fever.”

ISSUE: Whether the Sisters of Mercy Hospital/the doctors were negligent. HELD: Not negligent.

The doctrine of res ipsa loquitur is not applicable in this case.

Though expert testimony is usually needed to prove malpractice, where common knowledge and experience teach that the injury would not have occurred if due care had been exercised, the doctrine of res ipsa loquitur can be invoked to establish negligence. The elements of res ipsa loquitur are:

a. the accident will not normally occur unless someone is negligent;

b. the instrumentality which caused the injury was under the control of the person in charge; and c. the injury was not due to the voluntary act of the person injured.

In this case, Jorge’s death was not unusual because he had been suffering from fever and chills 5 days prior to admission. Furthermore, as to the charge of misdiagnosis, res ipsa loquitur cannot apply to suits involving the merits of a diagnosis.

b. respondeat superior

Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.

Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in Articles 1733 and 1755.

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in Articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in Articles 1755 and 1756.

Art. 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or wilful acts of the former's employees, although such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees.

Respondeat superior – means “let the employer/principal” be responsible

Under this principle, if the negligence of the employee has been proved, there is no need to prove the negligence of the employer. The employer is already presumed negligent in the hiring and/or supervision of the employee. This presumption is, however, rebuttable and not conclusive.

As will be shown in the following cases, the doctrine of respondeat superior is applicable not only to common carriers but to other instances where an employee or agent, not necessarily of a common carrier, is negligent. CASES:

City of Manila v. IAC

Vivencio Sto. Domingo died in 1971 and was buried in a lot in the North Cemetery. The lot was leased to his widow Irene Sto. Domingo until 2021. However, apart from the receipt issued by the city for the rental of the lot, there were no other records stating the term of the lease. In 1978, the Mayor of Manila, believed in good faith that the lease in favor of Irene Sto. Domingo was covered by Administrative Order No. 5, series of 1975 which provided for the lease of the burial lots only for a period of 5 years. Thinking that the lease in favor of Sto. Domingo had already terminated by this time, the mayor certified that the lot in which Vivencio was buried was ready for exhumation. In accordance with this certification, the authorities of the North Cemetery exhumed the remains of Vivencio and put them in a bag which was then stored inside a bodega. The lot was then leased to another party. During All Saints Day, Irene Sto. Domingo and her family were shocked to find that the lot no longer had the stone marker which they placed on the tomb. When she asked what happened to the remains of her husband, she was told to look for them in the bodega. Aggrieved, Irene Sto. Domingo filed a claim for damages against the City of Manila, the city health officer, and the person in charge of the cemetery. ISSUE: Whether the City of Manila is liable to Sto. Domingo.

HELD: Yes. With respect to proprietary functions, a municipal corporation can be held liable to third persons ex contractu or ex delicto. The superior or employer must answer civilly for the negligence or want of skill of its agent or servant in the course or line of his employment, by which another, who is free from contributory fault is injured. Maintenance of cemeteries is recognized as a municipal activity of a proprietary character.

Hence, under the doctrine of respondeat superior, petitioner City of Manila is liable for the tortious act committed by its agents who failed to verify and check the duration of the contract of lease. The contention of the petitioner-city that the lease is covered by Administrative Order No. 5, series of 1975 for five (5) years only beginning from June 6, 1971 is not meritorious for the said administrative order covers new leases. When subject lot was certified on January 25, 1978 as ready for exhumation, the lease contract for fifty (50) years was still in full force and effect.

The City of Manila is ordered to give Sto. Domingo the right to use a burial lot in the North Cemetery corresponding to the unexpired term of the fully paid lease sued upon, to search for the remains of the late Vivencio Domingo, and to bury the same in a substitute lot to be chosen by the Sto. Domingos. Moreover, moral and exemplary damages are awarded.

Eliza Jujeurche Salva was a college freshman majoring in Physical Education at the Siliman University in

Dumaguete City. One morning, Sunga rode a jeep owned and operated by Calalas, but, since it was already full, she was given by the conductor an “extension seat,” a wooden stool at the back of the door at the rear end of the vehicle.

Along the route, the jeepney stopped to let a passenger off. As she was seated at the rear of the vehicle, Sunga gave way to the outgoing passenger. Just as she was doing so, an Isuzu truck driven by Verena and owned by Salva bumped the left rear portion of the jeepney. As a result, Sunga was injured. Because of her injury, she decided not to pursue her Physical Education major as, in her words, her “left leg has a defect already.” A complaint for damages was filed by Calalas against Salva and Verena on the ground of quasi-delict – this was decided in favor of Calalas [this is not the case we’re studying].

Sunga subsequently filed a complaint for damages against Calalas, alleging breach of contract of carriage. Calalas filed a third-party complaint against against Salva [this is the case we’re studying].

The RTC absolved Calalas in the breach of contract case and held Salva liable as third party defendant. Its ruling was based on the ruling in the quasi-delict case.

The CA reversed and held that the Sunga’s cause of action was based on breach of contract and not quasi-delict. ISSUE: Whether Calalas is guilty of violating the contract of carriage.

HELD: Calalas is guilty.

The RTC was wrong in deciding the breach of contract [BOC] case on the basis of the quasi-delict [QD] case. Firstly, Sunga was not a party to the QD case and cannot be bound by its ruling.

Secondly, the issues or causes of action in both cases are different. The QD case is premised on the negligence of the tortfeasor. The BOC case is premised upon the negligence of the carrier in the performance of the contractual obligation.

Sunga’s complaint was based on BOC. It does not matter that a third person’s act was the proximate cause of the injury. The doctrine of proximate cause is applicable only to QD. In BOC, it is sufficient to show that there is a contractual relation between the parties and the common carrier failed to transmit the passenger safely.

Articles 1733, 1755, and 1756 provide that a common carrier must exercise extraordinary diligence and that in case of death or injury to passengers, the presumption is that the carrier acted negligently.

In this case, it is clear that the presumption of negligence has not been overcome. When the jeep stopped to unload, its rear was protruding around two meters into the highway. Also, it was overloaded, hence the employment of the extension seat. There is no fortuitous event because the dangers could have been foreseen and avoided.

* moral damages awarded by the CA were deleted because they are generally not available in cases of BOC of carriage. The exceptions are death of the passenger and bad faith of fraud of the carrier.

Pestano v. Sumayang

Sumayang and Romagos were riding a motorcycle along a highway in Cebu. As they were about to turn left at a junction, they were hit by a passenger bus driven by Pestano and owned by Metro Cebu Autobus Corp. The bus had tried to overtake them, but it hit them instead. Both Sumayang and Romagos died in the accident. Criminal charges were instituted against Pestano. The heirs of Sumayang also filed a civil action for damages against Pestano (as driver of the bus), Metro Cebu (as owner of the bus), and the insurer of Metro Cebu.

The lower court and the CA found Pestano and Metro Cebu guilty of negligence. Pestano was negligent in trying to overtake the victim’s motorcycle at the junction, while Metro Cebu was negligent in allowing the bus to ply its route despite its defective speedometer.

ISSUE: Whether Pestano and Metro Cebu are guilty of negligence.

HELD: Yes. The vehicular collision was caused by Pestano’s negligence when he attempted to overtake the motorcycle. As a professional driver operating a public transport bus, he should have anticipated that overtaking at a junction was a perilous maneuver, and he should have thus exercised extreme caution.

Metro Cebu is also guilty of negligence. Under Articles 2180 and 2176 of the Civil Code, owners and managers are responsible for damages caused by their employees. When an injury is caused by the negligence of a servant or an employee, the master or employer is presumed to be negligent either in the selection or in the supervision of that employee. This presumption may be overcome only by satisfactorily showing that the employer exercised the care and the diligence of a good father of a family in the selection and the supervision of its employee. In this case, Metro Cebu showed laxity in the operation of its business and in the supervision of its employees when it allowed Pestano to ply his route with a defective speedometer. It was remiss in the supervision of its employees and the proper care of its vehicles. It had thus failed to conduct its business with the diligence required by law. c. Violation of traffic rules

Art. 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty or reckless driving or violating traffic regulations at least twice within the next preceding two months.

If the owner was not in the motor vehicle, the provisions of Article 2180 are applicable. (n)

Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.

The driver is disputably presumed negligent if:

1.

2.

3.

There was a drizzle at around 4 pm when the Scout car, driven by respondent Fernando Abcede, which was negotiating the zigzag road in Camarines Norte, was hit on its left side by a bus. The bus was owned by petitioner Superlines Transportation, Co., Inc. and was driven by petitioner Emiliano Manuel. Due to the impact, the Scout car was thrown backwards against a protective railing. Were it not for the railing, the Scout car would have fallen into a deep ravine. All its ten occupants, which included four children, were injured, seven of the victims sustained serious physical injuries.

Emiliano Manuel, the driver of the bus, was prosecuted for multiple physical injuries through reckless imprudence. As he could later on not be found, an action for quasi-delict was filed against the Bus Co. and its insurer, and was ordered to pay P49, 954 in damages.

On appeal they contended that it was actually Abcede who was at fault, being only 19 yrs old and having no driver’s license. Proof of this according to them was a woman passenger heard saying ‘. 'Iyan na nga ba ang sinasabi ko, napakalakas ang loob,’ when the passengers alighted from the Scout car.

Likewise, petitioners questioned the accuracy of the pictures and sketches submitted by private respondents as evidence that the Superlines bus encroached on the lane of the Scout car. According to them, the sketch made by the police investigator showing flue skid marks of the bus, is inadmissible as evidence because it was prepared the day after the incident and the alleged "tell-tale" skid marks and other details had already been obliterated by the heavy downpour which lasted for at least an hour after the accident

ISSUE: Whether the Bus Company is liable. HELD: Yes.

There is strong presumption of regularity of functions of the policemen. Granting however that the placement of skidmarks were inaccurate, nonetheless, the finding of the Court of Appeals that the collision took place within the lane of the Scout car was supported by other conclusive evidence. "Indeed, a trail of broken glass which was scattered along the car's side of the road, whereas the bus lane was entirely clear of debris.”

Furthermore, the fact that the Scout car was found after the impact at rest against the guard railing shows that it must have been hit and thrown backwards by the bus.

Finally, the evidence with respect to the issue that Fernando Abcede, Jr. who was not duly licensed, was the one driving the Scout car at the time of the accident, could not simply exempt petitioners' liability because they were the parties at fault for encroaching on the Scout car's lane.

d. Dangerous Weapons and Substances

Art. 2188. There is prima facie presumption of negligence on the part of the defendant if the death or injury results from his possession of dangerous weapons or substances, such as firearms and poison, except when the possession or use thereof is indispensable in his occupation or business.

RA6969 Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990

Defendant is disputably presumed negligent if death or injury results from his possession of dangerous weapons or substances.

The defendant may invoke the defense that possession or use of such dangerous weapons or substances is indispensable in his occupation or business.

Smith Bell Shipping v. Borja

Smith Bell requested Customs for inspection on its vessel M/T King Family which was due to arrive containing 750 metric tons of alkyl benzene and methyl methacrylate monomer. Catalino Borja, Customs Inspector was then on board the vessel to perform his duties.

At around noon, while M/T King Family was unloading chemicals unto 2 barges owned by respondent ITTC, a sudden explosion occurred setting the vessels afire. Upon hearing the explosion, Borja who was at that time inside the cabin preparing reports, went outside to check what had happened, and another explosion was heard, seeing the fire and fearing his life, jumped overboard to save himself. However, the water was likewise on fire due mainly to the spilled chemicals. Despite the tremendous heat, he swam his way for 1 hour until he was rescued by the people living in the squatters’ area and sent to San Juan De Dios Hospital.

After weeks of intensive care at the hospital, he was diagnosed as permanently disabled due to the incident. He made demands against Smith Bell and ITTC for the damages caused by the explosion. However, both denied liabilities and attributed to each other negligence.

Trial court ruled in favor of Borja and dismissed all counterclaims and such of Smith Bell to ITTC. Contrary to the claim of petitioner that no physical evidence was shown to prove that the explosion had originated from its vessel, CA held Smith Bell liable following the findings of the investigation conducted by the Special Board of Marine Inquiry.

ISSUE: Whether Smith Bell whose cargo on board contained dangerous chemicals is liable. HELD: Yes.

Smith Bell cannot shift the blame to ITTC, as it stated that all the explosions erupted from outside its vessel and not aboard. Negligence is conduct that creates undue risk of harm to another. It is the failure to observe that degree of care, precaution and vigilance that the circumstances justly demand, whereby that other person suffers injury.

Petitioner’s vessel was carrying chemical cargo -- alkyl benzene and methyl methacrylate monomer. While

knowing that their vessel was carrying dangerous inflammable chemicals, its officers and crew failed to take all the necessary precautions to prevent an accident. Petitioner was, therefore, negligent.

As a result of the fire and the explosion during the unloading of the chemicals from petitioner’s vessel, Respondent Borja suffered burns that will permanently disable him Hence, the owner or the person in possession and control of a vessel and the vessel are liable for all natural and proximate damage caused to persons and property by reason of negligence in its management or navigation.

Problem: Due to recent bank robberies in the metropolis, a bank issued a circular to all its personnel, including security guards (contracted out through a security agency), to tighten security. X, a security guard at the front door of the bank, takes this to heart and has his shotgun ready. A, a customer of the bank, arrives at the front door and opens her bag to take out a gun for the purpose of surrendering it to the guard. The guard, upon seeing