2. DILIGENCE OF A GOOD FATHER OF A FAMILY
Simply stated, tort is a breach of a
MAJOR PURPOSES OF TORT LAW
1. to provide a peaceful means for adjusting the rights
of parties who might otherwise take the law into
their own hands;
2. deter wrongful acts;
3. encourage socially responsible behavior; and
4. restore injured parties to their original condition,
insofar as the law can do this, by compensating them
for their injury.
ELEMENTS OF TORT
1. DUTY or obligation recognized by law requiring a
person to conform to a certain standard of conduct
for the protection of others against unreasonable
risk;
2. BREACH or failure on the part of the person to
conform to the standard required;
3. PROXIMATE CAUSATION or a close causal
connection between the conduct and the resulting
injury;
4. INJURY or actual loss or damage resulting to the
interest of another.
DEGREES OF NEGLIGENCE
1. SLIGHT NEGLIGENCEthe failure to exercise great
or extraordinary care
2. ORDINARY NEGLIGENCE  the want of ordinary
care and diligence (such care and diligence as an
ordinarily prudent person would exercise under the
same or similar circumstances
3. GROSS NEGLIGENCE materially greater than
ordinary negligence, and consists of an entire
absence of care or an absence of even slight care or
diligence
 implies a thoughtless disregard for
consequences or an indifference to the rights or
welfare of others
DEGREES OF DILIGENCE
1. DUE DILIGENCE  the diligence reasonably
expected from, and ordinarily exercised by, a person
who seeks to satisfy a legal requirement or to
discharge an obligation
imposed by law.
 that which is required by the nature of the
obligation and corresponds with the
circumstances of person, time and place (Art.
1173, NCC)
 aka ORDINARY DILIGENCE or DILIGENCE OF A
PRUDENT MAN
3. EXTRAORDINARY DILIGENCE  extreme care that
a person of unusual prudence exercises to secure
rights or property
CASES
PICART vs. SMITH, JR.
 The test by which to determine the existence of
negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged
negligent act use that person would have used in the
same situation?
 Reasonable foresight of harm, followed by ignoring of
the suggestion born of this prevision, is always
necessary before negligence can be held to exist.
Stated in these terms, the proper criterion for
determining the existence of negligence in a given
case is this: Conduct is said to be negligent when a
prudent man in the position of the tortfeasor would
have foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing
conduct or guarding against its consequences.
 It goes without saying that the plaintiff himself was
not free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of
the road. It will be noted that the negligent acts of the
two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence
of the plaintiff by an appreciable interval. Under these
circumstances the law is that the person who has the
last fair chance to avoid the impending harm and fails
to do so is chargeable with the consequences, without
reference to the prior negligence of the other party.
NAGUIAT vs. NLRC
 Our jurisprudence is wanting as to the definite scope
of "corporate tort." Essentially, "tort" consists in the
violation of a right given or the omission of a duty
legal duty.
 Sergio Naguiat is held solidarily liable for corporate
tort because he had actively engaged in the
management and operation of CFTI, a close
corporation.
VINZONS-CHATO vs FORTUNE TOBACCO CORP.
 The rule in this jurisdiction is that a public officer
may be validly sued in his/her private capacity for
acts done in the course of the performance of the
functions of the office, where said public officer:
1) acted with malice, bad faith, or negligence; or
2) where the public officer violated a constitutional
right of the plaintiff.
 The Code Commission deemed it necessary to hold
not only public officers but also private individuals
civilly liable for violation of the rights enumerated in
Article 32 of the Civil Code. It is not necessary that
the defendant under this Article should have acted
with malice or bad faith, otherwise, it would defeat its
main purpose, which is the effective protection of
individual rights. It suffices that there is a violation of
the constitutional right of the plaintiff.
 Article 32 was patterned after the “tort” in American
law. A tort is a wrong, a tortious act which has been
defined as the commission or omission of an act by
one, without right, whereby another receives some
injury, directly or indirectly, in person, property, or
reputation.
GARCIA, JR. vs. SALVADOR
Negligence is the failure to observe for the protection
of the interest of another person that degree of care,
precaution and vigilance which the circumstances
justly demand, whereby such other person suffers
injury.
 For health care providers, the test of the existence of
negligence is: did the health care provider either fail
to do something which a reasonably prudent health
care provider would have done, or that he or she did
something that a reasonably prudent health care
provider would not have done; and that failure or
action caused injury to the patient; if yes, then he is
guilty of negligence.
Che-an Prelim Notes 1
 Thus, the elements of an actionable conduct are:
1) duty,
2) breach,
3) injury, and
4) proximate causation.
 In fine, violation of a statutory duty is negligence.
OCEAN BUILDERS CONSTRUCTION CORP. vs. SPS.
ANTONIO
 To successfully prosecute an action anchored on
torts, three elements must be present, viz:
(1) duty
(2) breach
(3) injury and proximate causation.
 Proximate cause is that which, in natural and
continuous sequence, unbroken by an efficient
intervening cause, produces injury, and without
which, the result would not have occurred. An injury
or damage is proximately caused by an act or failure
to act, whenever it appears from the evidence in the
case that the act or omission played a substantial part
in bringing about or actually causing the injury or
damage, and that the injury or damage was either a
direct result or a reasonably probable consequence of
the act or omission.
BARREDO vs. GARCIA
 Some of the differences between crimes under the
Penal Code and the culpa aquiliana or cuasi-delito
under the Civil Code are:
1. That crimes affect the public interest, while cuasi-
delitos are only of private concern.
2. That, consequently, the Penal Code punishes or
corrects the criminal act, while the Civil Code, by
means of indemnification, merely repairs the
damage.
3. That delicts are punished only if there is a penal
law clearly covering them, while the latter, cuasi-
delitos, include all acts in which "any king of fault or
negligence intervenes."
Firstly, the Revised Penal Code in Article 365 punishes
not only reckless but also simple negligence.
Secondly, to find the accused guilty in a criminal case,
proof of guilt beyond reasonable doubt is required,
while in a civil case, preponderance of evidence is
sufficient to make the defendant pay in damages.
CANGCO vs. MANILA RAILROAD CO.
 It is important to note that the foundation of the legal
liability of the defendant is the contract of carriage.
That is to say, its liability is direct and immediate,
differing essentially, in legal viewpoint from that
presumptive responsibility for the negligence of its
servants, imposed by article 1903 of the Civil Code,
which can be rebutted by proof of the exercise of due
care in their selection and supervision. Article 1903
of the Civil Code is not applicable to obligations
arising ex contractu, but only to extra-contractual
obligations — or to use the technical form of
expression, that article relates only to culpa aquiliana
and not to culpa contractual.
 The contract of defendant to transport plaintiff
carried with it, by implication, the duty to carry him
in safety and to provide safe means of entering and
leaving its trains (civil code, article 1258). That duty,
being contractual, was direct and immediate, and its
non-performance could not be excused by proof that
the fault was morally imputable to defendant's
servants.
 The fundamental distinction between obligations of
this character and those which arise from contract,
rests upon the fact that in cases of non-contractual
obligation it is the wrongful or negligent act or
omission itself which creates the vinculum juris,
whereas in contractual relations the vinculum exists
independently of the breach of the voluntary duty
assumed by the parties when entering into the
 When the sources of the obligation upon which
plaintiff's cause of action depends is a negligent act or
omission, the burden of proof rests upon plaintiff to
prove the negligence — if he does not his action fails.
But when the facts averred show a contractual
undertaking by defendant for the benefit of plaintiff,
and it is alleged that plaintiff has failed or refused to
perform the contract, it is not necessary for plaintiff
to specify in his pleadings whether the breach of the
contract is due to willful fault or to negligence on the
part of the defendant, or of his servants or agents.
Proof of the contract and of its nonperformance is
sufficient prima facie to warrant a recovery.
 The test by which to determine whether the
passenger has been guilty of negligence in attempting
to alight from a moving railway train, is that of
ordinary or reasonable care. It is to be considered
whether an ordinarily prudent person, of the age, sex
and condition of the passenger, would have acted as
the passenger acted under the circumstances
disclosed by the evidence. This care has been defined
to be, not the care which may or should be used by
the prudent man generally, but the care which a man
of ordinary prudence would use under similar
circumstances, to avoid injury." (Thompson,
Commentaries on Negligence, vol. 3, sec. 3010.)
ELCANO vs. HILL
 Under the Article 2177, acquittal from an accusation
of criminal negligence, whether on reasonable doubt
or not, shall not be a bar to a subsequent civil action,
not for civil liability arising from criminal negligence,
but for damages due to a quasi-delict or 'culpa
aquiliana'. But said article forestalls a double
recovery."
 While it is true that parental authority is terminated
upon emancipation of the child (Article 327, Civil
Code), and under Article 397, emancipation takes
place "by the marriage of the minor (child)", it is,
however, also clear that pursuant to Article 399,
emancipation by marriage of the minor is not really
full or absolute.
 Emancipation by marriage or by voluntary
concession shall terminate parental authority over
the child's person. It shall enable the minor to
administer his property as though he were of age, but
he cannot borrow money or alienate or encumber
real property without the consent of his father or
mother, or guardian. He can sue and be sued in court
only with the assistance of his father, mother or
guardian."
 On the other hand, the clear implication of Article
399, in providing that a minor emancipated by
marriage may not, nevertheless, sue or be sued
without the assistance of the parents, is that such
emancipation does not carry with it freedom to enter
into transactions or do any act that can give rise to
judicial litigation. (See Manresa, Id., Vol. II, pp. 766-
Che-an Prelim Notes 2
 767, 776.) And surely, killing someone else invites
judicial action.
ANDAMO vs. IAC
 A careful examination of the aforequoted complaint
shows that the civil action is one under Articles 2176
and 2177 of the Civil Code on quasi-delicts. All the
elements of a quasi-delict are present, to wit:
a) damages suffered by the plaintiff,
b) fault or negligence of the defendant, or some
other person for whose acts he must respond; and
c) the connection of cause and effect between the
fault or negligence of the defendant and the
damages incurred by the plaintiff.
 It must be stressed that the use of one's property is
not without limitations. Article 431 of the Civil Code
provides that "the owner of a thing cannot make use
thereof in such a manner as to injure the rights of a
third person." SIC UTERE TUO UT ALIENUM NON
LAEDAS. Moreover, adjoining landowners have
mutual and reciprocal duties which require that each
must use his own land in a reasonable manner so as
not to infringe upon the rights and interests of others.
BAKSH vs. CA
 The existing rule is that a breach of promise to marry
per se is not an actionable wrong.
 We are of the opinion, and so hold, that where a
man's promise to marry is in fact the proximate cause
of the acceptance of his love by a woman and his
representation to fulfill that promise thereafter
becomes the proximate cause of the giving of herself
unto him in a sexual congress, proof that he had, in
reality, no intention of marrying her and that the
promise was only a subtle scheme or deceptive
device to entice or inveigle her to accept him and to
obtain her consent to the sexual act, could justify the
award of damages pursuant to Article 21 not because
of such promise to marry but because of the fraud
and deceit behind it and the willful injury to her
honor and reputation which followed thereafter. It is
essential, however, that such injury should have been
committed in a manner contrary to morals, good
customs or public policy.
 Prior decisions of this Court clearly suggest that
Article 21 may be applied in a breach of promise to
marry where the woman is a victim of moral
seduction.
 In an action by the woman, the enticement,
persuasion or deception is the essence of the injury;
and a mere proof of intercourse is insufficient to
warrant a recovery.
 Pari delictomeans "in equal fault; in a similar offense
or crime; equal in guilt or in legal fault.
 This rule, however, has been interpreted as
applicable only where the fault on both sides is,
more or less, equivalent. It does not apply where
one party is literate or intelligent and the other
one is not.
CINCO vs. CANONOY
 It bears emphasizing that petitioner's cause of action
is based on quasi-delict. The concept of quasidelica as
enunciated in Article 2176 of the Civil Code, is so
broad that it includes not only injuries to persons but
also damage to property. It makes no distinction
between "damage to persons" on the one hand and
"damage to property" on the other. Indeed, the word
"damage" is used in two concepts: the "harm" done
and "reparation" for the harm done. And with respect
to harm it is plain that it includes both injuries to
person and property since "harm" is not limited to
personal but also to property injuries.
SYQUIA vs.CA
 The law defines negligence as 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."In the
absence of stipulation or legal provision providing
the contrary, the diligence to be observed in the
performance of the obligation is that which is
expected of a good father of a family.
LIGHT RAIL TRANSIT AUTHORITY vs. NAVIDAD
 Law and jurisprudence dictate that a common carrier,
both from the nature of its business and for reasons
of public policy, is burdened with the duty of
exercising utmost diligence in ensuring the safety of
passengers.
 “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.”
 The law requires common carriers to carry
passengers safely using the utmost diligence of very
cautious persons with due regard for all
circumstances. Such duty of a common carrier to
provide safety to its passengers so obligates it not
only during the course of the trip but for so long as
the passengers are within its premises and where
they ought to be in pursuance to the contract of
carriage.
 In case of such death or injury, a carrier is presumed
to have been at fault or been negligent, and by simple
proof of injury, the passenger is relieved of the duty
to still establish the fault or negligence of the carrier
or of its employees and the burden shifts upon the
carrier to prove that the injury is due to an
unforeseen event or to force majeure.
 The premise, however, for the employer’s liability is
negligence or fault on the part of the employee. Once
such fault is established, the employer can then be
made liable on the basis of the presumption juris
tantum that the employer failed to exercise
diligentissimi patris families in the selection and
supervision of its employees. The liability is primary
and can only be negated by showing due diligence in
the selection and supervision of the employee, a
factual matter that has not been shown.
 A contractual obligation can be breached by tort and
when the same act or omission causes the injury, one
resulting in culpa contractual and the other in culpa
aquiliana, Article 2194 of the Civil Code can well
apply. In fine, a liability for tort may arise even under
a contract, where tort is that which breaches the
contract. Stated differently, when an act which
constitutes a breach of contract would have itself
constituted the source of a quasi-delictual liability
had no contract existed between the parties, the
contract can be said to have been breached by tort,
thereby allowing the rules on tort to apply.
CORINTHIAN GARDENS ASSOCIATION, INC. vs SPS
TANJANGCO and SPS CUASO
 In every tort case filed under this provision, plaintiff
has to prove by a preponderance of evidence: (1) the
damages suffered by the plaintiff; (2) the fault or
negligence of the defendant or some other person for
whose act he must respond; and (3) the connection of
Che-an Prelim Notes 3
 cause and effect between the fault or negligence and
the damages incurred.
 A negligent act is an inadvertent act; it may be merely
carelessly done from a lack of ordinary prudence and
may be one which creates a situation involving an
unreasonable risk to another because of the
expectable action of the other, a third person, an
animal, or a force of nature. A negligent act is one
from which an ordinary prudent person in the actor's
position, in the same or similar circumstances, would
foresee such an appreciable risk of harm to others as
to cause him not to do the act or to do it in a more
careful manner.
 The test to determine the existence of negligence
in a particular case may be stated as follows: Did the
defendant in committing the alleged negligent act use
that reasonable care and caution which an ordinary
person would have used in the same situation? If not,
then he is guilty of negligence.
PHILIPPINE NATIONAL RAILWAYS vs. BRUNTY
Negligence is the omission to do something which a
reasonable man, guided by those considerations
which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a
prudent and reasonable man would not do.
 In Corliss v. Manila Railroad Company, this Court
held that negligence is want of the 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.
 In a long line of cases, the Court held that in order to
sustain a claim based on quasi-delict, the following
requisites must concur: (1) damage to plaintiff; (2)
negligence, by act or omission, of which defendant, or
some person for whose acts he must respond was
guilty; and (3) connection of cause and effect between
such negligence and damage.
 Contributory negligence is 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. 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
warning or signs of an impending danger to health
and body. To prove contributory negligence, it is still
necessary to establish a causal link, although not
proximate, between the negligence of the party and
the succeeding injury.
 The doctrine of last clear chance states that where
both parties are negligent but the negligent act of one
is appreciably later than that of the other, or where it
is impossible to determine whose fault or negligence
caused the loss, the one who had the last clear
opportunity to avoid the loss but failed to do so, is
chargeable with the loss. Stated differently, the
antecedent negligence of plaintiff does not preclude
him from recovering damages caused by the
supervening negligence of defendant, who had the
last fair chance to prevent the impending harm by the
exercise of due diligence. The proximate cause of the
injury having been established to be the negligence of
petitioner, we hold that the above doctrine finds no
application in the instant case.
 Actual or compensatory damages are those
awarded in order to compensate a party for an injury
or loss he suffered. They arise out of a sense of
natural justice, aimed at repairing the wrong done. To
be recoverable, they must be duly proved with a
reasonable degree of certainty.
 Moral damages are not punitive in nature, but are
designed to compensate and alleviate in some way
the physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury
unjustly caused a person. Although incapable of
pecuniary computation, moral damages must
nevertheless be somehow proportional to and in
approximation of the suffering inflicted.
PHILIPPINE NATIONAL RAILWAYS and BORJA vs. CA
 Negligence has been defined as "the failure to
observe for the protection of the interests of another
person that degree of care, precaution, and vigilance
which the circumstances justly demand, whereby
such other person suffers injury." Using the
aforementioned philosophy, it may be reliably
concluded that there is no hard and fast rule whereby
such degree of care and vigilance is calibrated; it is
dependent upon the circumstances in which a person
finds himself.
SICAM vs. JORGE
 The CA correctly pierced the veil of the corporate
fiction and adjudged petitioner Sicam liable together
with petitioner corporation. The rule is that the veil
of corporate fiction may be pierced when made as a
shield to perpetrate fraud and/or confuse legitimate
issues. The theory of corporate entity was not meant
to promote unfair objectives or otherwise to shield
them.
 Robbery per seis not a fortuitous event.
 Fortuitous events by definition are extraordinary
events not foreseeable or avoidable. It is therefore,
not enough that the event should not have been
foreseen or anticipated, as is commonly believed but
it must be one impossible to foresee or to avoid. The
mere difficulty to foresee the happening is not
impossibility to foresee the same.
 To constitute a fortuitous event, the following
elements must concur:
a) the cause of the unforeseen and unexpected
occurrence or of the failure of the debtor to
comply with obligations must be independent of
human will;
b) it must be impossible to foresee the event that
constitutes the casofortuito or, if it can be
foreseen, it must be impossible to avoid;
c) the occurrence must be such as to render it
impossible for the debtor to fulfill obligations in
a normal manner; and,
d) the obligor must be free from any participation
in the aggravation of the injury or loss.
 The burden of proving that the loss was due to a
fortuitous event rests on him who invokes it. And, in
order for a fortuitous event to exempt one from
liability, it is necessary that one has committed no
negligence or misconduct that may have occasioned
the loss.
 It has been held that an act of God cannot be invoked
to protect a person who has failed to take steps to
forestall the possible adverse consequences of such a
loss. One's negligence may have concurred with an
act of God in producing damage and injury to
another; nonetheless, showing that the immediate or
proximate cause of the damage or injury was a
fortuitous event would not exempt one from liability.
Che-an Prelim Notes 4
 When the effect is found to be partly the result of a
person's participation -- whether by active
intervention, neglect or failure to act -- the whole
occurrence is humanized and removed from the
rules applicable to acts of God.
CALALAS vs. CA
 In quasi-delict, the negligence or fault should be
clearly established because it is the basis of the
action, whereas in breach of contract, the action can
be prosecuted merely by proving the existence of the
contract and the fact that the obligor, in this case the
common carrier, failed to transport his passenger
safely to his destination.
 Where there is a pre-existing contractual relation
between the parties, it is the parties themselves who
create the obligation, and the function of the law is
merely to regulate the relation thus created.
 A caso fortuito is an event which could not be
foreseen, or which, though foreseen, was inevitable.
This requires that the following requirements be
present:
a) the cause of the breach is independent of the
debtor’s will;
b) the event is unforeseeable or unavoidable;
c) the event is such as to render it impossible for
the debtor to fulfill his obligation in a normal
manner, and
d) the debtor did not take part in causing the injury
to the creditor.
THE CONSOLIDATED BANK & TRUST CORP. vs. CA
 This fiduciary relationship means that the banks
obligation to observe high standards of integrity and
performance is deemed written into every deposit
agreement between a bank and its depositor. The
fiduciary nature of banking requires banks to assume
a degree of diligence higher than that of a good father
of a family.
 In culpa contractual, once the plaintiff proves a
breach of contract, there is a presumption that the
defendant was at fault or negligent. The burden is on
the defendant to prove that he was not at fault or
negligent. In contrast, in culpa aquiliana the plaintiff
has the burden of proving that the defendant was
negligent.
 Proximate cause is that cause which, in natural and
continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without
which the result would not have occurred. Proximate
cause is determined by the facts of each case upon
mixed considerations of logic, common sense, policy
and precedent.
 The doctrine of last clear chance states that where
both parties are negligent but the negligent act of one
is appreciably later than that of the other, or where it
is impossible to determine whose fault or negligence
caused the loss, the one who had the last clear
opportunity to avoid the loss but failed to do so, is
chargeable with the loss. Stated differently, the
antecedent negligence of the plaintiff does not
preclude him from recovering damages caused by the
supervening negligence of the defendant, who had the
last fair chance to prevent the impending harm by the
exercise of due diligence.
 We do not apply the doctrine of last clear chance to
the present case. This is a case of culpa contractual,
where neither the contributory negligence of the
plaintiff nor his last clear chance to avoid the loss,
would exonerate the defendant from liability. Such
contributory negligence or last clear chance by the
plaintiff merely serves to reduce the recovery of
damages by the plaintiff but does not exculpate the
defendant from his breach of contract.
MANILA PILOTS ASSOCIATION vs. PPA
 He is not held to the highest possible degree of skill
and care, but must have and exercise the ordinary
skill and care demanded by the circumstances, and
usually shown by an expert in his profession. Under
extraordinary circumstances, a pilot must exercise
extraordinary care.
 An act may be negligent if it is done without the
competence that a reasonable person in the position
of the actor would recognize as necessary to prevent
it from creating an unreasonable risk of harm to
another. Those who undertake any work calling for
special skills are required not only to exercise
reasonable care in what they do but also possess a
standard minimum of special knowledge and ability.
 Generally, the degree of care required is graduated
according to the danger a person or property
attendant upon the activity which the actor pursues
or the instrumentality which he uses. The greater the
danger the greater the degree of care required. What
is ordinary under extraordinary of conditions is
dictated by those conditions; extraordinary risk
demands extraordinary care. Similarly, the more
imminent the danger, the higher the degree of care.
 It may be said, as a general rule, that negligence in
order to render a person liable need not be the sole
cause of an injury. It is sufficient that his negligence,
concurring with one or more efficient causes other
than piaintiff's, is the proximate cause of the injury.
Accordingly, where several causes combine to
produce injuries, a person is not relieved from
liability because he is responsible for only one of
them, it being sufficient that the negligence of the
person charged with injury is an efficient cause
without which the injury would not have resulted to
as great an extent, and that such cause is not
attributable to the person injured. It is no defense to
one of the concurrent tortfeasors that the injury
would not have resulted from his negligence alone,
without the negligence or wrongful acts of the other
concurrent tortfeasor. Where several causes
producing an injury are concurrent and each is an
efficient cause without which the injury would not
have happened, the injury may be attributed to all or
any of the causes and recovery may be had against
any or all of the responsible persons although under
the circumstances of the case, it may appear that one
of them was more culpable, and that the duty owed
by them to the injured person was not the same. No
actor's negligence ceases to be a proximate cause
merely because it does not exceed the negligence of
other actors. Each wrongdoer is responsible for the
entire result and is liable as though his acts were the
sole cause of the injury.
FAR EAST BANK AND TRUST COMPANY vs. CA
 In culpa contractual, moral damages may be
recovered where the defendant is shown to have
acted in bad faith or with malice in the breach of the
contract.
 Bad faith, in this context, includes gross, but not
simple, negligence. Exceptionally, in a contract of
carriage, moral damages are also allowed in case of
Che-an Prelim Notes 5
 death of a passenger attributable to the fault (which
is presumed) of the common carrier.
 Malice or bad faith implies a conscious and
intentional design to do a wrongful act for a dishonest
purpose or moral obliquity; it is different from the
negative idea of negligence in that malice or bad faith
contemplates a state of mind affirmatively operating
with furtive design or ill will.
 The test (whether a quasi-delict can be deemed to
underlie the breach of a contract) can be stated
thusly: Where, without a pre-existing contract
between two parties, an act or omission can
nonetheless amount to an actionable tort by itself, the
fact that the parties are contractually bound is no bar
to the application of quasi-delict provisions to the
case.
PSBAvs. CA
 When an academic institution accepts students for
enrollment, there is established a contract between
them, resulting in bilateral obligations which both
parties are bound to comply with.For its part, the
school undertakes to provide the student with an
education that would presumably suffice to equip him
with the necessary tools and skills to pursue higher
education or a profession. On the other hand, the
student covenants to abide by the school's academic
requirements and observe its rules and regulations.
 Institutions of learning must also meet the implicit or
"built-in" obligation of providing their students with
an atmosphere that promotes or assists in attaining
its primary undertaking of imparting knowledge.
Certainly, no student can absorb the intricacies of
physics or higher mathematics or explore the realm
of the arts and other sciences when bullets are flying
or grenades exploding in the air or where there looms
around the school premises a constant threat to life
and limb. Necessarily, the school must ensure that
adequate steps are taken to maintain peace and order
within the campus premises and to prevent the
breakdown thereof.
 The school may still avoid liability by proving that the
breach of its contractual obligation to the students
was not due to its negligence, here statutorily defined
to be the omission of that degree of diligence which is
required by the nature of the obligation and
corresponding to the circumstances of persons, time
and place.
CRUZ vs. CA
 Whether or not a physician has committed an
"inexcusable lack of precaution" in the treatment of
his patient is to be determined according to the
standard of care observed by other members of the
profession in good standing under similar
circumstances bearing in mind the advanced state of
the profession at the time of treatment or the present
state of medical science.
 This Court stated that in accepting a case, a doctor in
effect represents that, having the needed training and
skill possessed by physicians and surgeons practicing
in the same field, he will employ such training, care
and skill in the treatment of his patients. He therefore
has a duty to use at least the same level of care that
any other reasonably competent doctor would use to
treat a condition under the same circumstances.
 Expert testimony should have been offered to prove
that the circumstances cited by the courts below are
constitutive of conduct falling below the standard of
care employed by other physicians in good standing
when performing the same operation. It must be
remembered that when the qualifications of a
physician are admitted, as in the instant case, there is
an inevitable presumption that in proper cases he
takes the necessary precaution and employs the best
of his knowledge and skill in attending to his clients,
unless the contrary is sufficiently established. This
presumption is rebuttable by expert opinion which is
so sadly lacking in the case at bench.
CAYAO-LASAM vs. SPS RAMOLETE
 Medical malpractice is a particular form of
negligence which consists in the failure of a physician
or surgeon to apply to his practice of medicine that
degree of care and skill which is ordinarily employed
by the profession generally, under similar conditions,
and in like surrounding circumstances. In order to
successfully pursue such a claim, a patient must
prove that the physician or surgeon either failed to do
something which a reasonably prudent physician or
surgeon would not have done, and that the failure or
action caused injury to the patient.
 There are four elements involved in medical
negligence cases: duty, breach, injury and proximate
causation.
 As to the aspect of medical malpractice, the
determination of the reasonable level of care and the
breach thereof, expert testimony is essential.
 Generally, to qualify as an expert witness, one must
have acquired special knowledge of the subject
matter about which he or she is to testify, either by
the study of recognized authorities on the subject or
by practical experience.
 Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and
without which the result would not have occurred. An
injury or damage is proximately caused by an act or a
failure to act, whenever it appears from the evidence
in the case that the act or omission played a
substantial part in bringing about or actually causing
the injury or damage; and that the injury or damage
was either a direct result or a reasonably probable
consequence of the act or omission.
 Contributory negligence is the act or omission
amounting to want of ordinary care on the part of the
person injured, which, concurring with the
defendant’s negligence, is the proximate cause of the
injury.
LUCAS vs. DR. PROSPERO MA. C. TUAÑO
 In medical negligence cases, also called medical
malpractice suits, there exist a physician-patient
relationship between the doctor and the victim. But
just like any other proceeding for damages, four
essential (4) elements i.e., (1) duty; (2) breach; (3)
injury; and (4) proximate causation, must be
established by the plaintiff/s. All the four (4)
elements must co-exist in order to find the physician
negligent and, thus, liable for damages.
 In treating his patient, a physician is under a duty to
[the former] to exercise that degree of care, skill and
diligence which physicians in the same general
neighborhood and in the same general line of practice
ordinarily possess and exercise in like cases. Stated
otherwise, the physician has the duty to use at least
the same level of care that any other reasonably
competent physician would use to treat the condition
under similar circumstances.
Che-an Prelim Notes 6
PROFESSIONAL SERVICES, INC. vs. AGANA
 An operation requiring the placing of sponges in the
incision is not complete until the sponges are
properly removed, and it is settled that the leaving of
sponges or other foreign substances in the wound
after the incision has been closed is at least prima
facie negligence by the operating surgeon. To put it
simply, such act is considered so inconsistent with
due care as to raise an inference of negligence.
 This is a clear case of medical malpractice or more
appropriately, medical negligence. To successfully
pursue this kind of case, a patient must only prove
that a health care provider either failed to do
something which a reasonably prudent health care
provider would have done, or that he did something
that a reasonably prudent provider would not have
done; and that failure or action caused injury to the
patient. Simply put, the elements are duty, breach,
injury and proximate causation.
 Literally, res ipsa loquitur means "the thing speaks
for itself." It is the rule that the fact of the occurrence
of an injury, taken with the surrounding
circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiff’s
prima facie case, and present a question of fact for
defendant to meet with an explanation. Stated
differently, where the thing which caused the injury,
without the fault of the injured, is under the exclusive
control of the defendant and the injury is such that it
should not have occurred if he, having such control
used proper care, it affords reasonable evidence, in
the absence of explanation that the injury arose from
the defendant’s want of care, and the burden of proof
is shifted to him to establish that he has observed due
care and diligence.
 From the foregoing statements of the rule, the
requisites for the applicability of the doctrine of
res ipsa loquitur are:
1) the occurrence of an injury;
2) the thing which caused the injury was under the
control and management of the defendant;
3) the occurrence was such that in the ordinary
course of things, would not have happened if
those who had control or management used
proper care; and
4) the absence of explanation by the defendant.
 Under the "Captain of the Ship" rule, the operating
surgeon is the person in complete charge of the
surgery room and all personnel connected with the
operation. Their duty is to obey his orders.
 In our shores, the nature of the relationship between
the hospital and the physicians is rendered
inconsequential in view of our categorical
pronouncement in Ramos v. Court of Appeals that for
purposes of apportioning responsibility in medical
negligence cases, an employer-employee relationship
in effect exists between hospitals and their attending
and visiting physicians.
 Apparent authority, or what is sometimes referred
to as the "holding out" theory, or doctrine of
ostensible agency or agency by estoppel, has its
origin from the law of agency. It imposes liability, not
as the result of the reality of a contractual
relationship, but rather because of the actions of a
principal or an employer in somehow misleading the
public into believing that the relationship or the
authority exists. The concept is essentially one of
estoppel and has been explained in this manner:
"The principal is bound by the acts of his agent
with the apparent authority which he knowingly
permits the agent to assume, or which he holds
the agent out to the public as possessing. The
question in every case is whether the principal
has by his voluntary act placed the agent in such
a situation that a person of ordinary prudence,
conversant with business usages and the nature
of the particular business, is justified in
presuming that such agent has authority to
perform the particular act in question.
February 2, 2010
CORONA, J.:
 After gathering its thoughts on the issues, this Court
holds that PSI is liable to the Aganas, not under the
principle of respondeat superior for lack of evidence
of an employment relationship with Dr. Ampil but
under the principle of ostensible agency for the
negligence of Dr. Ampil and, pro hac vice, under the
principle of corporate negligence for its failure to
perform its duties as a hospital.
 There is, however, ample evidence that the hospital
(PSI) held out to the patient (Natividad)that the
doctor (Dr. Ampil) was its agent. Present are the two
factors that determine apparent authority:
first, the hospital's implied manifestation to the
patient which led the latter to conclude that the
doctor was the hospital's agent; and
second, the patient’s reliance upon the conduct of
the hospital and the doctor, consistent with
ordinary care and prudence.
February 11, 2008
 In general, a hospital is not liable for the negligence of
an independent contractor-physician. There is,
however, an exception to this principle. The hospital
may be liable if the physician is the "ostensible" agent
of the hospital. This exception is also known as the
"doctrine of apparent authority." (Sometimes
referred to as the apparent or ostensible agency
theory.)
 The doctrine of apparent authority essentially
involves two factors to determine the liability of
an independent contractor-physician.
The first factor focuses on the hospital’s
manifestations and is sometimes described as an
inquiry whether the hospital acted in a manner
which would lead a reasonable person to conclude
that the individual who was alleged to be negligent
was an employee or agent of the hospital. In this
regard, the hospital need not make express
representations to the patient that the treating
physician is an employee of the hospital; rather
a representation may be general and implied.
The second factor focuses on the patient’s reliance.
It is sometimes characterized as an inquiry on
whether the plaintiff acted in reliance upon the
conduct of the hospital or its agent, consistent with
ordinary care and prudence.
Clearly, PSI is estopped from passing the blame solely to
Dr. Ampil. Its act of displaying his name and those of the
other physicians in the public directory at the lobby of
the hospital amounts to holding out to the public that it
offers quality medical service through the listed
physicians. This justifies Atty. Agana’s belief that Dr.
Ampil was a member of the hospital’s staff. It must be
stressed that under the doctrine of apparent
authority, the question in every case is whether the
principal has by his voluntary act placed the agent
in such a situation that a person of ordinary
Che-an Prelim Notes 7
prudence, conversant with business usages and the
nature of the particular business, is justified in
presuming that such agent has authority to perform
the particular act in question. In these cases, the
circumstances yield a positive answer to the question.
VALENZUELA vs CA
 Contributory negligence is 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.
 Courts have traditionally been 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.
 Under the “emergency rule” adopted by this Court in
Gan vs Court of Appeals,an individual who suddenly
finds himself in a situation of danger and is required
to act without much time to consider the best means
that may be adopted to avoid the impending danger,
is not guilty of negligence if he fails to undertake what
subsequently and upon reflection may appear to be a
better solution, unless the emergency was brought by
his own negligence.
 Obviously in the case at bench, the only negligence
ascribable was the negligence of Li on the night of the
accident. “Negligence, as it is commonly understood
is conduct which creates an undue risk of harm to
others.”It is the failure to observe that degree of care,
precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers
injury.We stressed, in Corliss vs. Manila Railroad
Company,that negligence is the want of care required
by the circumstances.
CRUZvs. GANGAN
 “Negligence is the omission to do something which a
reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a
prudent man and reasonable man would not do.
“Negligence is want of care required by the
circumstances.
 The Rules provide that property for official use and
purpose shall be utilized with the diligence of a good
father of a family. Extra-ordinary measures are not
called for in taking care of a cellular phone while in
transit. It is a settled rule that negligence cannot be
presumed; it has to be proven. In the absence of any
shred of evidence thereof, respondents gravely
abused their discretion in finding petitioner
negligent.
AMEDO vs. RIO Y OLABARRIETA, INC.
 The phrase "notorious negligence" has been held to
be tantamount to "gross negligence", which, in turn,
has been defined as follows:
Gross negligence is defined to be the want of even
slight care and diligence.
By gross negligence is meant "such entire want of
care as to raise a presumption that the person in
fault is conscious of the probable consequences of
carelessness, and is indifferent, or worse, to the
danger of injury to person or property of others." ...
The negligence must amount to a reckless
disregard of the safety of person or property."
MARINDUQUE IRON MINES AGENTS, INC. vs. THE
WORKMEN’S COMPENSATION COMMISSION
 There is no doubt that mere riding on haulage truck
or stealing a ride thereon is not negligence,
ordinarily. It couldn’t be, because transportation by
truck is not dangerous per se.
 The prohibition had nothing to do with personal
safety of the riders.
 Nevertheless, even granting there was negligence, it
surely was not “notorious” negligence, which we have
interpreted to mean the same thing as “gross
negligence” — implying “conscious indifference to
consequences” “pursuing a course of conduct which
would naturally and probably result in injury” “utter
disregard of consequences.” Getting or accepting a
free ride on the company’s haulage truck couldn’t be
gross negligence, because as the referee found, “no
danger or risk was apparent.”
ILAO-ORETAvs.SPS. RONQUILLO
"Gross negligence" implies a want or absence of or
failure to exercise slight care or diligence, or the
entire absence of care. It evinces a thoughtless
disregard of consequences without exerting any
effort to avoid them. It is characterized by want of
even slight care, acting or omitting to act in a
situation where there is a duty to act, not
inadvertently but willfully and intentionally with a
conscious indifference to consequences in so far as
other persons may be affected.
 It bears noting that when she was scheduling the date
of her performance of the procedure, Dr. Ilao-Oreta
had just gotten married and was preparing for her
honeymoon, and it is of common human knowledge
that excitement attends its preparations. Her
negligence could then be partly attributed to human
frailty which rules out its characterization as gross.
TAYLOR vs. THE MANILA ELECTRIC RAILROAD AND
LIGHT COMPANY
 We agree with counsel for appellant that under the
Civil Code, as under the generally accepted doctrine
in the United States, the plaintiff in an action such as
that under consideration, in order to establish his
right to a recovery, must establish by competent
evidence:
1) Damages to the plaintiff.
2) Negligence by act or omission of which
defendant personally, or some person for whose
acts it must respond, was guilty.
3) The connection of cause and effect between the
negligence and the damage.
 "The conduct of an infant of tender years is not to be
judged by the same rule which governs that of adult.
While it is the general rule in regard to an adult that
to entitle him to recover damages for an injury
resulting from the fault or negligence of another he
must himself have been free from fault, such is not
the rule in regard to an infant of tender years. The
care and caution required of a child is according to
his maturity and capacity only, and this is to be
Che-an Prelim Notes 8
 determined in each case by the circumstances of the
case."
 And the same eminent jurist in his treatise or torts,
alluding to the doctrine of implied invitation to
visit the premises of another, says:
In the case of young children, and other persons
not fully sui juris, an implied license might
sometimes arise when it would not on behalf of
others. Thus leaving a tempting thing for children
to play with exposed, where they would be likely to
gather for that purpose, may be equivalent to an
invitation to them to make use of it; and, perhaps, if
one were to throw away upon his premises, near
the common way, things tempting to children, the
same implication should arise. (Chap. 10, p. 303.)
 As was said in case of Railroad Co. vs. Stout (supra),
"While it is the general rule in regard to an adult that
to entitle him to recover damages for an injury
resulting from the fault or negligence of another he
must himself have been free from fault, such is not
the rule in regard to an infant of tender years. The
care and caution required of a child is according to
his maturity and capacity only, and this is to be
determined in each case by the circumstances of the
case."
THE HEIRS OF COMPLETO AND ABIAD vs. ALBAYDA
 The bicycle occupies a legal position that is at least
equal to that of other vehicles lawfully on the
highway, and it is fortified by the fact that usually
more will be required of a motorist than a bicyclist in
discharging his duty of care to the other because of
the physical advantages the automobile has over the
bicycle.
 It is obvious that a motor vehicle poses a greater
danger of harm to a bicyclist than vice versa.
Accordingly, while the duty of using reasonable care
falls alike on a motorist and a bicyclist, due to the
inherent differences in the two vehicles, more care is
required from the motorist to fully discharge the duty
than from the bicyclist.Simply stated, the physical
advantages that the motor vehicle has over the
bicycle make it more dangerous to the bicyclist than
vice versa.
 When an injury is caused by the negligence of an
employee, a legal presumption instantly arises that
the employer was negligent. This presumption may
be rebutted only by a clear showing on the part of the
employer that he exercised the diligence of a good
father of a family in the selection and supervision of
his employee..
 In the selection of prospective employees, employers
are required to examine them as to their
qualifications, experience, and service records. On the
other hand, with respect to the supervision of
employees, employers should formulate standard
operating procedures, monitor their implementation,
and impose disciplinary measures for breaches
thereof. To establish these factors in a trial involving
the issue of vicarious liability, employers must submit
concrete proof, including documentary evidence.
PACIS vs. MORALES
 Indeed, a higher degree of care is required of
someone who has in his possession or under his
control an instrumentality extremely dangerous in
character, such as dangerous weapons or substances.
Such person in possession or control of dangerous
instrumentalities has the duty to take exceptional
precautions to prevent any injury being done
thereby. Unlike the ordinary affairs of life or business
which involve little or no risk, a business dealing with
dangerous weapons requires the exercise of a higher
degree of care.
JARCO MARKETING CORPORATION vs.CA
 An accident pertains to an unforeseen event in which
no fault or negligence attaches to the defendant. It is
"a fortuitous circumstance, event or happening; an
event happening without any human agency, or if
happening wholly or partly through human agency,
an event which under the circumstances is unusual or
unexpected by the person to whom it happens."
 On the other hand, negligence is the omission to do
something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct
of human affairs, would do, or the doing of something
which a prudent and reasonable man would not do.
Negligence is "the failure to observe, for the
protection of the interest of another person, that
degree of care, precaution and vigilance which the
circumstances justly demand, whereby such other
person suffers injury."
 Accident and negligence are intrinsically
contradictory; one cannot exist with the other.
Accident occurs when the person concerned is
exercising ordinary care, which is not caused by fault
of any person and which could not have been
prevented by any means suggested by common
prudence.
 The test in determining the existence of negligence is
enunciated in the landmark case of Plicart v. Smith,
thus: Did the defendant in doing the alleged negligent
act use that reasonable care and caution which an
ordinarily prudent person would have used in the
same situation? If not, then he is guilty of negligence.
 Anent the negligence imputed to ZHIENETH, we
apply the conclusive presumption that favors
children below nine (9) years old in that they are
incapable of contributory negligence. In his book,
former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of
age is conclusively presumed to have acted
without discernment, and is, on that account,
exempt from criminal liability. The same
presumption and a like exemption from criminal
liability obtains in a case of a person over nine
and under fifteen years of age, unless it is shown
that he has acted with discernment. Since
negligence may be a felony and a quasi-delict and
required discernment as a condition of liability,
either criminal or civil, a child under nine years
of age is, by analogy, conclusively presumed to
be incapable of negligence; and that the
presumption of lack of discernment or incapacity
for negligence in the case of a child over nine but
under fifteen years of age is a rebuttable one,
under our law. The rule, therefore, is that a child
under nine years of age must be conclusively
presumed incapable of contributory negligence
as a matter of law.
YLARDE vs. AQUINO
 In ruling that the child Ylarde was imprudent, it is
evident that the lower court did not consider his age
and maturity. This should not be the case. The degree
of care required to be exercised must vary with the
capacity of the person endangered to care for himself.
A minor should not be held to the same degree of care
as an adult, but his conduct should be judged
according to the average conduct of persons of his
Che-an Prelim Notes 9
 age and experience. The standard of conduct to which
a child must conform for his own protection is that
degree of care ordinarily exercised by children of the
same age, capacity, discretion, knowledge and
experience under the same or similar circumstances.
6 Bearing this in mind, we cannot charge the child
Ylarde with reckless imprudence.
 The contention that private respondent Aquino
exercised the utmost diligence of a very cautious
person is certainly without cogent basis. A reasonably
prudent person would have foreseen that bringing
children to an excavation site, and more so, leaving
them there all by themselves, may result in an
accident. An ordinarily careful human being would
not assume that a simple warning "not to touch the
stone" is sufficient to cast away all the serious danger
that a huge concrete block adjacent to an excavation
would present to the children. Moreover, a teacher
who stands in loco parentis to his pupils would have
made sure that the children are protected from all
harm in his company.
CULION ICE, FISH AND ELECTRIC CO., INC. vs.
PHILIPPINE MOTORS CORPORATION
 It must be remembered that when a person holds
himself out as being competent to do things requiring
professional skill, he will be held liable for negligence
if he fails to exhibit the care and skill of one ordinarily
skilled in the particular work which he attempts to
do. The proof shows that Quest had had ample
experience in fixing the engines of automobiles and
tractors, but it does not appear that he was
experienced in the doing of similar work on boats.
THE UNITED STATES vs. PINEDA
 The profession of pharmacy, it has been said again
and again, is one demanding care and skill. The
responsibility of the druggist to use care has been
variously qualified as "ordinary care," "care of a
special high degree," "the highest degree of care
known to practical men." Even under the first
conservative expression, "ordinary care" with
reference to the business of a druggist, the Supreme
Court of Connecticut has said must be held to signify
"the highest practicable degree of prudence,
thoughtfulness, and vigilance, and most exact and
reliable safeguards consistent with the reasonable
conduct of the business, in order that human life may
not be constantly be exposed to the danger flowing
from the substitution of deadly poisons for harmless
medicine." The "skill" required of a druggist is
denominated as "high" or "ample." In other words,
the care required must be commensurate with the
danger involved, and the skill employed must
correspond with the superior knowledge of the
business which the law demands.
 Under one conception, and it should not be forgotten
that the case we consider are civil in nature, the
question of negligence or ignorance is irrelevant. The
druggist is responsible as an absolute guarantor of
what he sells.
 The rule of caveat emptor cannot apply to the
purchase and sale of drugs. The vendor and the
vendee do not stand at arms length as in ordinary
transactions. An imperative duty is on the druggist to
take precautions to prevent death or serious injury to
anyone who relies on his absolute honesty and
peculiar leaning. Consequently, it must be that the
druggist warrants that he will deliver the drug called
for.
MERCURY DRUG CORPORATION vs. DE LEON
 Mercury Drug and Ganzon failed to exercise the
highest degree of diligence expected of them.
 Mercury Drug and Ganzon can not exculpate
themselves from any liability. As active players in the
field of dispensing medicines to the public, the
highest degree of care and diligence is expected of
them. Likewise, numerous decisions, both here and
abroad, have laid salutary rules for the protection of
human life and human health.
 In the United States case of Tombari v. Conners, it was
ruled that the profession of pharmacy demands care
and skill, and druggists must exercise care of a
specially high degree, the highest degree of care
known to practical men. In other words, druggists
must exercise the highest practicable degree of
prudence and vigilance, and the most exact and
reliable safeguards consistent with the reasonable
conduct of the business, so that human life may not
constantly be exposed to the danger flowing from the
substitution of deadly poisons for harmless
medicines.
FERNANDO vs. CA
 Negligence has been defined as the failure to observe
for the protection of the interests of another person
that degree of care, precaution, and vigilance which
the circumstances justly demand, whereby such other
person suffers injury.
 To be entitled to damages for an injury resulting from
the negligence of another, a claimant must establish
the relation between the omission and the damage.
He must prove under Article 2179 of the New Civil
Code that the defendant's negligence was the
immediate and proximate cause of his injury.
Proximate cause has been defined as that cause,
which, in natural and continuous sequence unbroken
by any efficient intervening cause, produces the
injury, and without which the result would not have
occurred. Proof of such relation of cause and effect is
not an arduous one if the claimant did not in any way
contribute to the negligence of the defendant.
However, where the resulting injury was the product
of the negligence of both parties, there exists a
difficulty to discern which acts shall be considered
the proximate cause of the accident.
RAMOS vs. CA
 Res ipsa loquitur is a Latin phrase which literally
means "the thing or the transaction speaks for itself."
The phrase "res ipsa loquitur'' is a maxim for the rule
that the fact of the occurrence of an injury, taken with
the surrounding circumstances, may permit an
inference or raise a presumption of negligence, or
make out a plaintiff's prima facie case, and present a
question of fact for defendant to meet with an
explanation. Where the thing which caused the injury
complained of is shown to be under the management
of the defendant or his servants and the accident is
such as in ordinary course of things does not happen
if those who have its management or control use
proper care, it affords reasonable evidence, in the
absence of explanation by the defendant, that the
accident arose from or was caused by the defendant's
want of care.
 Mere invocation and application of the doctrine of res
ipsa loquiturdoes not dispense with the requirement
of proof of negligence. It is simply a step in the
process of such proof, permitting the plaintiff to
present along with the proof of the accident, enough
of the attending circumstances to invoke the doctrine,
Che-an Prelim Notes 10
 creating an inference or presumption of negligence,
and to thereby place on the defendant the burden of
going forward with the proof. 20 Still, before resort to
the doctrine may be allowed, the following requisites
must be satisfactorily shown:
1. The accident is of a kind which ordinarily does
not occur in the absence of someone's
negligence;
2. It is caused by an instrumentality within the
 Generally, to qualify as an expert witness, one must
exclusive control of the defendant or
defendants; and
3. The possibility of contributing conduct which
would make the plaintiff responsible is
eliminated.
 Proximate cause has been defined as that which, in
 Although generally, expert medical testimony is
relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has
deviated from the standard medical procedure, when
the doctrine of res ipsa loquitur is availed by the
plaintiff, the need for expert medical 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 within 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.
SPS. BONTILAO vs. GERONA
 When the doctrine is appropriate, all that the patient
 The trial court erred in applying the doctrine of res
must do is prove a nexus between the particular act
or omission complained of and the injury sustained
while under the custody and management of the
defendant without need to produce expert medical
testimony to establish the standard of care. Resort to
res ipsa loquitur is allowed because there is no other
way, under usual and ordinary conditions, by which
the patient can obtain redress for injury suffered by
him.
 It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a
physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment. Thus, res ipsa
loquitur is not available in a malpractice suit if the
only showing is that the desired result of an
operation or treatment was not accomplished. The
real question, therefore, is whether or not in the
 In malpractice cases, the doctrine is generally
process of the operation any extraordinary incident
restricted to situations where a layman is able to say,
or unusual event outside of the routine performance
as a matter of common knowledge and observation,
occurred which 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 or
causes 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.
have acquired special knowledge of the subject
matter about which he or she is to testify, either by
the study of recognized authorities on the subject or
by practical experience.
natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and
without which the result would not have occurred. An
injury or damage is proximately caused by an act or a
failure to act, whenever it appears from the evidence
in the case, that the act or omission played a
substantial part in bringing about or actually causing
the injury or damage; and that the injury or damage
was either a direct result or a reasonably probable
consequence of the act or omission. It is the
dominant, moving or producing cause.
ipsa loquitur to pin liability on respondent for Allen's
death. Res ipsa loquitur is a rebuttable presumption
or inference that the defendant was negligent. The
presumption only arises upon proof that the
instrumentality causing injury was in the defendant's
exclusive control, and that the accident was one (1)
which ordinarily does not happen in the absence of
negligence. It is a rule of evidence whereby
negligence of the alleged wrongdoer may be inferred
from the mere fact that the accident happened,
provided that the character of the accident and
circumstances attending it lead reasonably to the
belief that in the absence of negligence it would not
have occurred and that the thing which caused injury
is shown to have been under the management and
control of the alleged wrongdoer.
that the consequences of professional care were not
as such as would ordinarily have followed if due care
had been exercised. In other words, as held in Ramos
v. Court of Appeals,the real question is whether or not
in the process of the operation, any extraordinary
incident or unusual event outside of the routine
performance occurred which is beyond the regular
scope of professional activity in such operations, and
which, if unexplained, would themselves reasonably
speak to the average man as the negligent cause or
causes of the untoward consequence.
 The doctrine of res ipsa loquitur allows the mere
existence of an injury to justify a presumption of
negligence on the part of the person who controls the
instrument causing the injury, provided that the
following requisitesconcur:
1. The accident is of a kind which ordinarily does
not occur in the absence of someone's
negligence:
2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants;
and
3. The possibility of contributing conduct which
would make the plaintiff responsible is
eliminated.
HUANG vs. PHILIPPINE HOTELIERS, INC
 This Court finds it significant to take note of the
following differences between quasi-delict (culpa
aquilina) and breach of contract (culpa contractual).
In quasi-delict, negligence is direct, substantive and
independent, while in breach of contract, negligence
is merely incidental to the performance of the
contractual obligation; there is a pre-existing contract
or obligation. In quasi-delict, the defense of "good
father of a family" is a complete and proper defense
insofar as parents, guardians and employers are
concerned, while in breach of contract, such is not a
complete and proper defense in the selection and
supervision of employees. In quasi- delict, there is no
presumption of negligence and it is incumbent upon
the injured party to prove the negligence of the
defendant, otherwise, the former’s complaint will be
dismissed, while in breach of contract, negligence is
presumed so long as it can be proved that there was
breach of the contract and the burden is on the
defendant to prove that there was no negligence in
Che-an Prelim Notes 11
 the carrying out of the terms of the contract; the rule
of respondeat superior is followed.
 Res ipsa loquitur is a Latin phrase which literally
means "the thing or the transaction speaks for itself."
It relates to the fact of an injury that sets out an
inference to the cause thereof or establishes the
plaintiff’s prima facie case. The doctrine rests on
inference and not on presumption. The facts of the
occurrence warrant the supposition of negligence and
they furnish circumstantial evidence of negligence
when direct evidence is lacking. Simply stated, this
doctrine finds no application if there is direct proof of
absence or presence of negligence. If there is
sufficient proof showing the conditions and
circumstances under which the injury occurred, then
the creative reason for the said doctrine disappears.
 Further, the doctrine of res ipsa loquitur applies
where,
1) the accident was of such character as to warrant
an inference that it would not have happened
except for the defendant’s negligence;
2) the accident must have been caused by an
agency or instrumentality within the exclusive
management or control of the person charged
with the negligence complained of; and
3) the accident must not have been due to any
voluntary action or contribution on the part of
the person injured.
BATIQUINvs. CA
 As such, the rule of res ipsa loquitur comes to fore.
This Court has had occasion to delve into the nature
and operation of this doctrine:
This doctrine res ipsa loquituris stated thus:
"Where the thing which causes injury is shown
to be under the management of the defendant,
and the accident is such as in the ordinary course
of things does not happen if those who have the
management use proper care, it affords
reasonable evidence, in the absence of an
explanation by the defendant, that the accident
arose from want of care." Or as Black's Law
Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself.
Rebuttable presumption or inference that
defendant was negligent, which arises upon b) fault or negligence of the defendant; and,
proof that [the] instrumentality causing injury
c) connection of cause and effect between the fault
was in defendant's exclusive control, and that the
or negligence of the defendant and the damage
accident was one which ordinary does not
incurred by the plaintiff.
happen in absence of negligence. Res ipsa
loquitur is [a] rule of evidence whereby  It is generally recognized that the drugstore business
negligence of [the] alleged wrongdoer may be is imbued with public interest. The health and safety
inferred from [the] mere fact that [the] accident
of the people will be put into jeopardy if drugstore
happened provided [the] character of [the] employees will not exercise the highest degree of care
accident and circumstances attending it lead and diligence in selling medicines.Inasmuch as the
reasonably to belief that in [the] absence of matter of negligence is a question of fact, we defer to
negligence it would not have occurred and that the findings of the trial court affirmed by the Court of
thing which caused injury is shown to have been Appeals.
under [the] management and control of [the]
 The care required must be commensurate with the
alleged wrongdoer . . . . Under [this] doctrine . . .
danger involved, and the skill employed must
the happening of an injury permits an inference
correspond with the superior knowledge of the
of negligence where plaintiff produces
substantial evidence that [the] injury was caused business which the law demands.
by an agency or instrumentality under [the] Proximate cause is defined as any cause that
exclusive control and management of defendant, produces injury in a natural and continuous
and that the occurrence [sic] was such that in the sequence, unbroken by any efficient intervening
ordinary course of things would not happen if cause, such that the result would not have occurred
reasonable care had been used. otherwise.
xxx xxx xxx
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 is not a rule of
substantive law, but merely a mode of proof or a
mere procedural convenience. The rule, when
applicable to the facts and circumstances of a
particular case, is not intended to and does not
dispense with the requirement of proof of
culpable negligence on the party charged. It
merely determines and regulates what shall be
primafacie evidence thereof and facilitates the
burden of plaintiff of proving a breach of the
duty of due care. The doctrine can be invoked
when and only when, under the circumstances
involved, direct evidence is absent and not
readily available.
MERCURY DRUG CORPORATION vsBAKING
 To sustain a claim based on Art 2176 of the Civil
Code, the following requisites must concur:
a) damage suffered by the plaintiff;
Che-an Prelim Notes 12