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Explore how the doctrine is being used with particular

reference to contracts, dangerous occupations and injury-


prone activities.

While the doctrine of volenti fit non injuria has already been cited
by several decided cases abroad, the same is also true in the
Philippine context. The doctrine has already been cited by the
Supreme Court in several cases, applying it to different facts and
circumstances be it in contracts, dangerous occupations or injury
prone activities. The rule has been

Volenti non fit injuria in Philippine context has been defined


as, that to which a person assents is not deemed in law an injury
(Cerezo v. Atlantic Gulf & Pacific Co., 33 Phil 431). Damage suffered
by consent is not a cause of action (Dela Cruz v. Go, 33861-R,
December 4, 1973). A principle which is a mere ramification of the
doctrine of acceptance of risk, which is turn is a ramification of the
doctrine of contributory negligence, and is generally limited to
controversies between master and servant and is not applicable in
the absence of any contractual relation, express or implied between
the parties (People v. Cabahug, 14892-R, January 27, 1956). This is a
specie of assumption of risk by conduct.

In the celebrated case of Ilocos Norte Electric Co. v. CA, the


Supreme Court had the occassion to rule that the maxim volenti
non fit injuria does not apply in a case when the deceased left the
comforts of a roof and braved the subsiding typhoon. Isabel Lao Juan
was on her way to the grocery store to see to it that the goods were
not flooded, when by an unfortunate event she was drowned and
was electrocuted. The question on the matter arises if whether or
not she should be punished for exercising her right to protect her
property from the floods by imputing upon her the unfavorable
presumption that she assumed the risk of personal injury? Definitely
not. The Supreme Court ruled that a person is excused from the
force of the risk, that when he voluntarily asserts to a known danger
he must abide by the consequences, if an emergency is found to
exist, or if the life or property of another is in peril, or when he seeks
to rescue his endangered property. An emergency was at hand when
the deceaseds property, a spurce of her livelihood was faced with
impending loss. Furthermore, the deceased, at the time the fatal
accident occurred, was at a place where she had the right to be
without regard to the petitioners consent as she was on her way not
be barred from recovering damages as a result of the death caused
by petitioners negligence. 1

In the interesting case of Nikko Hotel v. Reyes, Roberto Reyes


(also known as Amay Bisaya) was having coffee at the hotels lobby,

1 G.R. No. 53401, November 6, 1989


when he was approached by Dr. Filart, who invited him to attend the
celebration of the hotels manager. He lined up for the buffet, and
was stopped by Lim, the hotels manager. He was told, Wag ka
nang kumain. Di ka imbitado. Bumaba ka na lang. Apparently,
being humiliated by the hotel managers actuation, he filed a suit
asking for damages. On the other hand, Lim and Hotel Nikko
contend that pursuant to the doctrine of volenti non fit injuria, they
cannot be made liable for damages as respondent Reyes assumed
the risk of being asked to leave (and being embarrassed and
humiliated in the process) as he was a gate-crasher. The Supreme
Court ruled in favor of Lim and Hotel Nikko. It held that:

The doctrine of volenti non fit injuria (to


which a person assents is not esteemed in
law as injury) refers to self-inflicted injury
or to the consent to injury which precludes
the recovery of damages by one who has
knowingly and voluntarily exposed himself
to danger, even if he is not negligent in
doing so. As formulated by petitioners,
however, this doctrine does not find
application to the case at bar because
even if respondent Reyes assumed the risk
of being asked to leave the party,
petitioners, under Articles 19 and 21 of the
New Civil Code, were still under obligation
to treat him fairly in order not to expose
him to unnecessary ridicule and shame.2

Volenti fit non injuria are of two kinds express waiver of the
right to recover and implied assumptions. In the former, there is
assumption of risk if the plaintiff, in advance has expressly waived
his right to recover damages for the negligent act of the defendant.
In the latter, the dangerous conditions, contractual relations and
dangerous activities belong. Now, we will try to explore one by one
these implied assumptions and how the Supreme Court discussed
broadly and applied the doctrine of volenti fit non injuria.

A. Contracts

Contracts are binding when there has already been a meeting of


the minds between the parties whereby one binds himself, with
respect to the other, to give something or to render some service.
One is not allowed to back out on the agreement on account that he
made a bad bargain on the matter. In relation to contracts, there
may be implied assumption of risk if the plaintiff entered into a
relation with the defendant. By entering into a relationship freely

2 G.R. No. 154259, February 28, 2005


and voluntarily where the negligence of the defendant is obvious,
the plaintiff may be found to accept and consent to it, and to
undertake to look out for himself and to relieve the defendant of the
duty. Thus, there may be assumption of risk if the plaintiff entered
into a contractual relation with the defendant.3

In the case of Cerezo v. Atlantic gulf, Cerezo here was an


employee of Atlantic Gulf. Apparently, their occupation was to work
on a trench. However, at that time, there was yet no instruction
from their superior to enter the trench. Unfortunately, on Cerezos
part, because of the call of nature, he entered the trench. As a
result, the brace of the trench was destroyed and he was buried up
to his waist. When his colleagues tried to rescue him, it was already
late since he already died. Aggrieved by the death of her son, his
mother filed a suit for damages. The issue to be resolved in this
case is whether or not Atlantic Gulf can be liable for damages. The
Court first determined the whether the company is liable under the
Employers Liability Act and whether the mother can recover liability
under the Civil Code. In both cases, the Supreme Court ruled in the
negative. The Court ruled in this wise:

Article 1105 of the Civil Code provides that:

No one shall be liable for events which could not be


foreseen, or which having been foreseen were inevitable,
with the exception of the cases expressly mentioned in the
law of those in which the obligation so declares.

The case under consideration does not fall within the


exceptions mentioned in the above quoted article.
(Manresa, vol. 8, p. 91.) After providing a reasonably safe
place in and about which the deceased was required to
work, the defendant's liability was then limited to those
events which could have been foreseen. Article 1902
provides that a person who, by an act or omission causes
damage to another when there is fault or negligence shall
be obliged to repair the damage so done. Article 1903 after
providing for the liability of principals for the acts of their
employees, agents, or these for whom they are otherwise
responsible, provides that such liability shall cease when the
persons mentioned therein prove that they employed all the
diligence of a good father of a family to avoid the damage.
We have then, on the one hand, nonliability of an employer
for events which could not be foreseen (article 1105), and
where he has exercised the care of a good father of a family
(article 1903), and, on the other hand, his liability where
fault or negligence may be attributed to him (article 1902).

3 Timoteo B. Aquino, Torts and Damages (Philippines: Rex Bookstore, 2005), 265-273
On the issue of whether or not the employer can be held liable
for the death of his employee by reason that the latter was on his
job when he was injured/died, the Court disposed that situation in
this matter:

Experience and common sense demonstrate that ordinarily


no danger to employees is to be anticipated from such a
trench as that in question. The fact that the walls had
maintained themselves for a week, without indication of
their giving way, strongly indicates that the necessity for
bracing or shoring the trench was remote. To require the
company to guard against such an accident as the one in
question would virtually compel it to shore up every foot of
the miles of trenches dug by it in the city of Manila for the
gas mains. Upon a full consideration of the evidence, we are
clearly of the opinion that ordinary care did not require the
shoring of the trench walls at the place where the deceased
met his death. The event properly comes within the class of
those which could not be foreseen; and, therefore, the
defendant is not liable under the Civil Code.

All in all, what the Supreme Court is trying to emphasize in this case
is that the employer is not an insurer of all risks. In other words,
there are those indubitable risks in labor which the employer cannot
insure.

In relation to the preceding case is the case of Afialda vs. Hisole


(85 Phil. 67 [1949]). The Supreme Court then again reiterated its
ruling in Cerezo. In this case, Loreto Afialda was the caretaker of the
carabaos that were owned by Hisole. Then, on March 21, 1947,
without any fault on the part of Afialda, on of the carabaos gored
him, thereby causing his death. An action for damages was
instituted by the heirs of Afialda. The issue in this case was whether
the owner of the animal is liable when damage is caused to its
caretaker. The Supreme Court held in the negative. It ruled that:

In the present case, the animal was in custody and under the
control of the caretaker, who was paid for his work as such.
Obviously, it was the caretaker's business to try to prevent
the animal from causing injury or damage to anyone,
including himself. And being injured by the animal under
those circumstances, was one of the risks of the occupation
which he had voluntarily assumed and for which he must take
the consequences.

Similar to its import in the case of Cerezo, the


Supreme Court again ruled that the company
cannot insure all perils that will happen to its
employee. If there are risks that are inherent in
certain occupations, the employee is free to
disengage in such occupations if he doesnt want
to undertake the perils that go with it. But, if the
employee himself voluntarily assumed such
occupations, knowing fully well the perils inherent
in such occupation, then is deemed to have
voluntarily assumed the risk. Thus, volenti fit non
injuria applies.

In relation to the contract of common carriage, volenti fit non


injuria also applies in a sense that as a rule, when a passenger
boards a common carrier, he takes the risks incidental to the mode
of travel he has taken. After all, a carrier is not an insurer of the
safety of its passengers and is not bound absolutely and at all
events to carry them safely and without injury. However, when a
passenger is injured or dies while travelling, the law presumes that
the common carrier is negligent.4

B. Dangerous Occupations

As a rule, persons who engage in dangerous occupations cannot


invoke the doctrine of volenti fit non injuria. Professional athletes for
that matter, such as boxers, are deemed to assume the risks of
injury incident to their trade. A boxer is deemed to have assumed
the risk of suffering from injuries incident to such contact sport.
Hence, if a boxer gets injured such that he gets a sprain on the
ankle, he suffers bodypain as a result of the hard blows of his
opponent and he gets knocked-down in the match he cannot sue
his promoter or his opponent for the injuries that he sustained as an
incident to his sport, which is boxing. Volenti fit non injuria to the
willing, no injury is done.

While in the Philippines, there has yet been no ruling by the


Supreme Court on the matter. However, in the United States, there
has been an instance where the court there did not apply the
doctrine of volenti fit non injuria. The reason being, that persons
who engage in dangerous occupations cannot invoke the doctrine of
volenti fit non injuria. In the case of Maddox v. City of New York 5,
which have persuasive effect in our jurisdiction, the court there
ruled in this wise:

Arbegast v Board of Educ. has noted


common law's distinction between express and
implied assumption of risk and held that,
notwithstanding the adoption in 1975 of CPLR
4 Yobido v. CA, October 17, 1997

5 487 N.E. 2d 553 (1985)


1411, the plaintiff in that case having admitted
"that she had been informed both of the risk of
injury and that 'the participants were at their own
risk'", her participation in the games there
involved constituted an express agreement on her
part to assume the risk, entitling defendant to the
direction of a verdict.

In the instant case we deal not with


express assumption of risk, but with assumption of
risk to be implied from plaintiff's continued
participation in the game with the knowledge and
appreciation of the risk which his deposition
testimony spelled out and which established his
implied assumption as a matter of law.

The risks of a game which must be played


upon a field include the risks involved in the
construction of the field, as has been held many
times before. That the assumption doctrine
"applies to any facet of the activity inherent in it
and to any open and obvious condition of the place
where it is carried on".

There is no question that the doctrine


requires not only knowledge of the injury-causing
defect but also appreciation of the resultant risk,
but awareness of risk is not to be determined in a
vacuum. It is, rather, to be assessed against the
background of the skill and experience of the
particular plaintiff, and in that assessment a higher
degree of awareness will be imputed to a
professional than to one with less than professional
experience in the particular sport.

It is not necessary to the application of


assumption of risk that the injured plaintiff have
foreseen the exact manner in which his or her
injury occurred, so long as he or she is aware of
the potential for injury of the mechanism from
which the injury results. Nor do the enhancement
cases to which plaintiff refers in arguing that the
risk of water on the field was enhanced by the
failure to install proper drainage facilities avail
plaintiff, for in each of those cases the enhanced
risk that resulted was unknown to the particular
plaintiff, whereas here the resulting risk (mud) was
evident to plaintiff as is shown by his observation
of mud and water and his complaints to the
grounds keepers concerning the presence of water
to the grass line.

C. Injury-prone activities

Injury-prone or accident-prone means instances/situations likely


to hurt as a result of an accident. If a person, knowing fully well the
dangerous condition of the situation, voluntarily assumes the risk,
then volenti fit non injuria to the willing, no injury is done.

An example cited by several book authors is the case of


Rodrigueza v. Manila Railroad Co. which says that, a person who
maintained his house near a railroad track assumes the usual
dangers attendant to the operation of the locomotive.

One of the oft-cited cases in relation to injury-prone acrivities is


the case of Transporto v. Mijares. In that case, Transporto,
apparently irked by his companions, challenged them to a bet
despite the warning of Vicente Lim that the said firecracker was real
and would explode. Mijares, the defendant herein, willingly took the
challenge. When the firecracker exploded, on Ramon Pillado told
Transporto that his right hand was bleeding. The latter replied, Well
it is an accident; its my fault. Upon discharge from the hospital,
Transporto sought monetary help from Mijares. They both agree on
the amount of P1000 in which Mijares paid P500 in advance.
However, when Transporto demanded for the balance of P500,
Mijares ignored him and told him thathe was already paid. The
Supreme Court herein ruled:

This case should, therefore, be governed by the doctrine


of volenti non fit injuria (no wrong is done to him who
consents), that is, that to which a person assents is not
esteemed, in law, an injury, the facts and circumstances
being such as to warrant the conclusion that the plaintiff,
freely and voluntarily, with full knowledge of the nature
and extent of the risk he ran, impliedly agreed to incur it.
When a person, knowing and appreciating the danger and
the risk, elects voluntarily to encounter them, he can no
more maintain an action founded upon the statute than
he can in cases to which the statute has no application.
(See Birmingham Railway & Electric Co. vs. Allen, 20
L.R.A. 457, and the cases cited therein; also Tamayo vs.
Gsell, 35 Phil. 954). In Francisco, Torts and Damages,
1957 ed., pp. 197-198, we read the following on the
matter of assumption of risk:

The principle that one who voluntarily assumed


the risk of injury from a known danger is
debarred from a recovery is recognized in
negligence cases. As stated, a plaintiff who by
his conduct, has brought himself within the
operation of the maxim, volenti non fit injuria,
cannot recover on the basis of the defendants
negligence. In the words of the maxim as
translated, that to which a person assents is not
esteemed in law was injury. * * * It is said that
one who knows, appreciates, and deliberately
exposes himself to a danger assumes the risk
thereof. One cannot deliberately incur an obvious
risk of personal injury, especially when
preventive measures are at hand, and then hold
the author of the danger for the ensuing injury.

As a conclusion from the foregoing cases that were ruled by the


Supreme Court, The doctrine of assumption of risk simply says: To
whoever consents, no injury is done. If a person takes a known risk,
and then suffers damage, but he knew fully well the risks that he
ran into, then he cannot recover.

However, there are 3 instances when the doctrine is inapplicable.


The following are the instances wherein the doctrine of assumption
of risk cannot be applied:

1. Nikko Hotel v. Reyes: It is inapplicable in the sense that its


still limited by the law on human relations.

2. INELCO v. CA: The doctrine of volenti non fit injuria does not
apply in cases where the victim had every right to be there had
every right to assume the risk.

3. It also does not apply to the so-called risks of labor- risks inherent
in an occupation.