Torts and Damages

Tort
An unlawful violation of private right, not created by contract, and which
gives rise to an action for damages.

It is an act or omission producing an injury to another, without any previous

existing lawful relation of which the said act or omission may be said to be a natural
outgrowth or incident.

NOTES:
• An unborn child is NOT entitled to damages. But the bereaved
parents may be entitled to damages, on damages inflicted directly
upon them. (Geluz vs. CA, 2 SCRA 802)
• Defendants in tort cases can either be natural or artificial being.
Corporations are civilly liable in the same manner as natural
persons.
• Any person who has been injured by reason of a tortious conduct
can sue the tortfeasor.
• The primary purpose of a tort action is to provide compensation to a
person who was injured by the tortious conduct of the defendant.
• Preventive remedy is available in some cases.

Classes of Torts
A. Negligent Torts
B. Intentional Torts
C. Strict Liability

Negligent Torts
Involve voluntary acts or omissions which result in injury to others without
intending to cause the same or because the actor fails to exercise due care in
performing such acts or omissions.

NEGLIGENCE
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.
(Article 1173 Civil Code)

Kinds of Negligence:
CULPA AQUILIANA CULPA CRIMINAL CULPA
CONTRACTUAL
a. Negligence here is a. Negligence here is a. Negligence is
direct, substantive, direct, substantive, merely incidental,
and independent and independent incident to the
(Rakes v, Atlantic of a contract. performance of an
Gulf & Pac. Co., 7 b. No pre-existing obligation already
Phil. 395). obligation (except existing because
b. No pre-existing never to harm of a contract
obligation (except others). (Rakes v, Atlantic
of course the duty c. PROOF NEEDED Gulf & Pac. Co., 7
to be careful in all IN A CRIME- proof Phil. 395).
human actuations) beyond b. There is a pre-
(Rakes v, Atlantic reasonable doubt existing obligation
Gulf & Pac. Co., 7 (Barredo v. (a contract, either
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Phil. 395). Garcia) express or implied

c. PROOF NEEDED- d. This is not a (Rakes v, Atlantic
preponderance of proper defense in Gulf & Pac. Co., 7
 evidence (Barredo culpa criminal. Phil. 395).
v. Garcia, I.O.G. Here the c. PROOF NEEDED-
No. 6, p. 191). employee’s guilt is preponderance of
d. Defense of a good automatically the evidence (Barredo
father of a family, employer’s civil v. Garcia, I.O.G.
etc, is a proper guilt, if the former No. 6, p. 191).
and compete is insolvent (See d. Defense of a good
defense (in so far M. Luisa Martinez father of a family in
as employers or vs, Barredo) the selection and
guardians are e. Accused is the supervision of
concerned) in presumed the employees is
culpa acquiliana innocent until the not a proper and
(Cangco and De contrary is proved, complete defense
Guia Cases). so prosecution has in culpa
e. Ordinarily, the the burden of contractual
victim has to prove proving the (though this may
the negligence of negligence of the mitigate
the defendant. accused. damages).
This is because (Cangco vs.
his action is based Manila Railroad
on alleged Co., 38 Phil. 769
negligence on the and De Guia vs.
part of the Meralco, 40 Phil.
defendant 760). Here we
(Cangco Case and follow the RULE
8 Manresa 71). OF
RESPONDEAT
SUPERIOR or
COMMAND
RESPONSIBILITY
or the MASTER
AND SERVANT
RULE).
e. As long as it is
proved that there
was a contract and
that it was not
carried out, it is
presumed that the
debtor is at fault,
and it is his duty to
prove that there
was no negligence
in carrying out the
terms of the
contract (Cangco
case; 8 Manresa
71).

NOTES:
• The 3 kinds of negligence furnish separate, distinct, and independent bases
of liability or causes of action.
• A single act or omission may give rise to two or more causes of action.

Quasi-delict
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Whoever by act or omission causes damage to another, there being fault or

negligence is obliged to pay for the damage done. (Article 2176 Civil Code)
Essential Requisites for a quasi-delictual action:
1. Act or omission constituting fault or negligence;
2. Damage caused by the said act or omission; and
3. Causal relation between the damage and the act or omission.

Tests of Negligence
1. Did the defendant in doing the alleged negligent act use the reasonable care
and caution which an ordinarily prudent person would have used in the same
situation?
• If not then he is guilty of negligence.
2. Could a prudent man, in the case under consideration, foresee harm as a result
of the course pursued?
• If so, it was the duty of the actor to take precautions to guard against harm.

NOTES:
• Negligence is a conduct - the determination of the existence of negligence is
concerned with what the defendant did or did not do
• The state of mind of the actor is not important; good faith or use of sound
judgment is immaterial. The existence of negligence in a given case is not
determined by reference to the personal judgment but by the behavior of the
actor in the situation before him. (Picart vs. Smith)
• Negligence is a conduct that creates an undue risk of harm to others.
• The determination of negligence is a question of foresight on the part of the
actor – FORESEABILITY.
• Even if a particular injury was not foreseeable, the risk is still foreseeable if
possibility of injury is foreseeable.
• Forseeability involves the question of PROBABILITY, that is, the existence
of some real likelihood of some damage and the likelihood is of such
appreciable weight reasonably to induce, action to avoid it.

Calculation of Risk
Interests are to be balanced only in the sense that the purposes of the actor,
the nature of his act and the harm that may result from action or inaction are
elements to be considered.

Circumstances to consider in determining negligence:

1. Time
2. Place
3. Emergency

Emergency rule

GENERAL RULE: 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.
EXCEPTION: When the emergency was brought by the individual’s own negligence.
(Valenzuela vs. CA 253 SCRA 303).

4. Gravity of Harm to be avoided

5. Alternative Course of Action
• If the alternative presented to the actor is too costly, the harm that may
result may be still be considered unforeseeable to a reasonable man.
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6. Social value or utility of activity

7. Person exposed to the risk
GOOD FATHER OF A FAMILY (pater familias)
• This is the standard of conduct used in the Philippines
• A man of ordinary intelligence and prudence or an ordinary reasonable
prudent man
• A reasonable man deemed to have knowledge of the facts that a man
should be expected to know based on ordinary human experience. (PNR vs
IAC, 217 SCRA 409)
• A prudent man who is expected to know the basic laws of nature and
physics, e.g. gravity.

SPECIAL RULES
1. Children
The action of the child will not necessarily be judged according to the
standard of an adult. But if the minor is mature enough to understand and
appreciate the nature and consequence of his actions, he will be considered
negligent if he fails to exercise due care and precaution in the commission of such
acts.

NOTES:
• The law fixes no arbitrary age at which a minor can be said to have the
necessary capacity to understand and appreciate the nature and
consequence of his acts. (Taylor vs. Meralco, 16 Phil 8)
• Applying the provisions of the Revised Penal Code, Judge Sangco takes the
view that a child who is 9 or below is conclusively presumed to be incapable
of negligence. In the other hand, if the child is above 9 years but below 15,
there is a disputable presumption of absence of negligence.
• Absence of negligence does not necessarily mean absence of liability.
• Liability without fault: a child under 9 years can still be subsidiarily liable with
his property (Art. 100, RPC)
• Absence of negligence of the child may not excuse the parents from their
vicarious liability under Art. 2180 NCC or Art. 221 FC.

2. Physical Disability
Mere weakness of a person will not be an excuse in negligence cases.
However if defect amounts to a real disability the standard of conduct is that of a
reasonable person under like disability.

3. Experts and professionals

They should exhibit the care and skill of one who is ordinarily skilled in the
particular field that he is in.

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.

An expert will not be judged based on what a non-expert can foresee.

The rule regarding experts is applicable not only to professionals who have
undergone formal education.

4. Nature of activity
There are activities which by nature impose duties to exercise a higher
degree of diligence.

Examples:
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• Banks, by the very nature of their work, are expected to exercise the highest
degree of diligence in the selection and supervision of their employees.
 • Common carriers are required to exercise extraordinary diligence in the
vigilance over their passengers and transported goods. (Article 1733 Civil Code).

5. Intoxication

GENERAL RULE: Mere intoxication is not negligence, nor does the mere fact of
intoxication establish want of ordinary care. But it may be one of the circumstances
to be considered to prove negligence.
EXCEPTION: Under Art. 2185 of the Civil Code, it is presumed that a person driving
a motor vehicle has been negligent if at the time of the mishap, he was violating any
traffic regulation.

6. Insanity
The insanity of a person does not excuse him or his guardian from liability
based on quasi-delict.

Bases for holding an insane person liable for his tort:

a. Where one of two innocent persons must suffer a loss, it should be borne by
the one who occasioned it.
b. To induce those interested in the estate of the insane person to restrain and
control him.
c.The fear that an insanity would lead to false claims of insanity and avoid
liability.

7. Women
In determining the question of contributory negligence in performing such
act, the age, sex, and condition of the passengers are circumstances necessarily
affecting the safety of the passenger, and should be considered. (Cangco vs. Manila
Railroad Co. GR No.12191, October 14, 1918)
• Although there is no unequivocal statement of the rule, Valenzuela vs. CA
253SCRA303 appears to require a different standard of care for women under
the circumstances indicated therein.

Other Factors to Consider in Determining Negligence

A. VIOLATION OF RULES AND STATUTES

1. Statutes

GENERAL RULE: Violation of a statutory duty is NEGLIGENCE PER SE (Cipriano vs.

CA, 263SCRA711). When the Legislature has spoken, the standard of care required is
no longer what a reasonably prudent man would do under the circumstances but
what the Legislature has commanded.
EXCEPTIONS:
a. When unusual conditions occur and strict observance may defeat
the purpose of the rule and may even lead to adverse results.
b. When the statute expressly provides that violation of a statutory duty
merely establishes a presumption of negligence.

NOTE: Rule as to proof of proximate cause

GENERAL RULE: Plaintiff must show that the violation of the statute is the proximate
or legal cause of the injury or that it substantially contributed thereto. (Sanitary Steam
Laundry, Inc. vs. CA 300SCRA20)
EXCEPTION: In cases where the damage to the plaintiff is the damage sought to be
prevented by the statute. In such cases, proof of violation of statute and damage to
the plaintiff may itself establish proximate cause. (Teague vs. Fernandez 51SCRA181).
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2. Administrative Rule
 Violation of a rule promulgated by administrative agencies is not negligence
per se but may be EVIDENCE OF NEGLIGENCE.

3. Private Rules of Conduct

Violation of rules imposed by private individuals (e.g. employers) is merely a
POSSIBLE EVIDENCE OF NEGLIGENCE.

B. PRACTICE AND CUSTOM

Compliance with the practice and custom in a community will not
automatically result in a finding that the actor is not guilty of negligence. Non-
compliance with the practice or custom in the community does not necessarily
mean that the actor was negligent.

In Yamada vs. Manila Railroad Co., the owner of an automobile struck by a train
while crossing the tracks sought to establish absence of negligence of its driver by
evidence of a custom of automobile drivers of Manila by which they habitually drove
their cars over the railroad crossings without slackening speed. The SC rejected the
argument by ruling that: a practice which is dangerous to human life cannot ripen
into custom which will protect anyone who follows it.

C. COMPLIANCE WITH STATUTES

Compliance with a statute is not conclusive that there was no negligence.

Example: A defendant can still be held liable for negligence even if he can establish
that he was driving below the speed limit. Compliance with the speed limit is not
conclusive that he was not negligently driving his car.

Gross Negligence - Negligence where there is “want of even slight care and
diligence.”

PROOF OF NEGLIGENCE

GENERAL RULE:
If the plaintiff alleged in his complaint that he was damaged because of the
negligent acts of the defendant, the plaintiff has the burden of proving such
negligence. (Taylor vs. MERALCO 16Phil8)
The quantum of proof required is preponderance of evidence. (Rule 133
Revised Rules of Court)
EXCEPTIONS: Exceptional cases when the rules or the law provides for cases when
negligence is presumed.
• Presumptions of Negligence
• Res Ipsa Loquitur

A. Presumptions of Negligence
In motor vehicle mishaps, the owner is presumed negligent if he was in the
vehicle and he could have used due diligence to prevent the misfortune. (Article 2184
Civil Code)

It is disputably presumed that a driver was negligent if he had been found

guilty of reckless driving or violating traffic regulations at least twice for the next
preceding two months. (Article 2184 Civil Code)

The driver of a motor vehicle is presumed negligent if at the time of the

mishap, he was violating any traffic regulation. (Article 2185 Civil Code)

GENERAL RULE: Prima facie presumption of negligence of the defendant arises if

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death or injury results from his possession of dangerous weapons or substance.

EXCEPTION: When such possession or use is indispensable to his occupation or
business. (Article 2188 Civil Code)

GENERAL RULE: Presumption of negligence of the common carrier arises in case of

loss, destruction or deterioration of the goods, or in case of death or injury of
passengers.
EXCEPTION: Upon proof of exercise of extraordinary diligence.

B. Res Ipsa Loquitur “The thing or transaction speaks for itself.”

It is a rule of evidence peculiar to the law of negligence which recognizes
that prima facie negligence may be established in the absence of direct proof, and
furnishes a substitute for specific proof of negligence.

Requisites of Res Ipsa Loquitor:

1. The accident was of a kind which ordinarily does not occur in the absence of
someone’s negligence;
2. The instrumentality which caused the injury was under the exclusive control
and management of the person charged with negligence; and
3. The injury suffered must not have been due to any voluntary action or
contribution on the part of the person injured; absence of explanation by the
defendant.

In Africa vs. Caltex (Phil.) Inc. Mar 31, 1966, defendant Caltex was liable for
damage done to the property of its neighbors when fire broke out in a Caltex
service station. The gasoline station, with all its appliances, equipment and
employees, was under the control of the defendant. The persons who knew how the
fire started were the defendant and its employees, but they gave no explanation
whatsoever.

The doctrine is not applicable if there is direct proof of absence or presence

of negligence. (S.D. Martinez, et al vs. William Van Buskirk)

AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES

1. Duty to Rescue

A. Duty to the rescuer

• The defendants are liable for the injuries to persons who rescue people in
distress because of the acts or omissions of the said defendants.
• There is liability to the rescuer and the law does not discriminate between
the rescuer oblivious to the peril and the one who counts the costs.
• The risk of rescue, if only not wanton, is born of the occasion.
• One who was hurt trying to rescue another who was injured through
negligence may recover damages. (Santiago vs. De leon CA-GR No.16180-R March
21, 1960)
• Danger of personal injury or death.

Duty to rescue

GENERAL RULE: There is no general duty to rescue; a person is not liable for
quasi-delict even if he did not help a person in distress.
EXCEPTIONS: A limited duty to rescue is imposed in certain cases:
Abandonment of persons in danger and abandonment of one’s own victim is
considered, under certain circumstances as a crime against security (Article 275 RPC);
and No driver of a motor vehicle concerned in a vehicular accident shall leave the
scene of the accident without aiding the victim unless he is excused from doing so.
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(Section 55 RA 4136 [Land Transportation and traffic Code])

2. Owners, Proprietors and Possessors of Property

GENERAL RULE: The owner has no duty to take reasonable care towards a trespasser for
his protection or even to protect him from concealed danger.
NOTE: Damage to any person resulting from the exercise of any rights of ownership is
damage without injury (Damnum absque injuria)

EXCEPTIONS:
a. Visitors and tolerated possession
• The owner is still liable if the plaintiff is inside his property by tolerance or by
implied permission.
• Owners of buildings or premises owe duty of care to visitors.
Doctrine of Attractive Nuisance
One who maintains on his premises dangerous instrumentalities or
appliances of a character likely to attract children in play, and who fails to exercise
ordinary care to prevent children from playing therewith or resorting thereto, is liable
to a child of tender years who is injured thereby, even if the child is technically a
trespasser in the premises.

NOTE: A swimming pool or pond or reservoir of water is NOT considered

attractive nuisance. (Hidalgo Enterprises vs. Baladan 91 Phil 488)

State of Necessity
The owner of a thing has no right to prohibit the interference of another with
the same if the interference is necessary to avert imminent danger and the
threatened damage, compared to the damage arising to the owner from the
interference, is much greater. (Article 432 Civil Code)

It is also a recognized justifying circumstance under the RPC.

In both the Civil Code and the RPC, the owner may demand from the
person benefited, indemnity for the damages.

Use of properties that injures another

• An owner cannot use his property in such a manner as to injure the rights of
others. (Article 431 Civil Code).
• Hence the exercise of the right of the owner may give rise to an action
based on quasi-delict if the owner negligently exercises such right to the
prejudice of another.
Liability of Proprietors of buildings
• New Civil Code include provisions that apply to proprietors of a building or
structure which involve affirmative duty of due care in maintaining the same:
Articles 2190 and 2191.
• Third persons who suffered damages may proceed only against the
engineer or architect or contractor if the damage referred to in Articles 2190
and 2191should be a result of any defect in construction.
• Nevertheless, actions for damages can still be maintained under Article
2176 for damages resulting from proprietor’s failure to exercise due care in
the maintenance of his building and that he used his property in such a way
that he injured the property of another.

3. Employers and Employees

A. Employers
Actions for quasi-delict can still be maintained even if employee’s
compensation is provided for under the Labor Code.
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In quasi-delictual actions against the employer, the employee may use the
provisions of the Labor Code which imposes upon the employer certain duties with
respect to the proper maintenance of the work place or the provisions of adequate
facilities to ensure the safety of the employees.

Articles 1711 and 1712 of the Civil Code impose liability without fault on the
part of the employers.

B. Employees
Employees are bound to exercise due care in the performance of their
functions for the employers; absence such due care, the employee may be held
liable.

4. Banks
The business of banks is one affected by public interest. Because of the
nature of its functions, a bank is under obligation to treat the accounts of its
depositors with meticulous care, always having in mind the fiduciary nature of their
relationship. (PBC vs. CA [1997])

5. Common carriers
• From the nature of their business and for reasons of public policy, they are
bound to exercise extraordinary diligence in the vigilance over the goods
and the safety of the passengers.
• The case against the common carrier is for the enforcement of an obligation
arising from breach of contract.
• The same act which breached the contract may give rise to an action based
on quasi delict. (Air France vs Carrascoso, L21438, Sept. 28, 1996)

6. Doctors

A. STANDARD OF CARE
The proper standard is whether, the physician if a general practitioner, has
exercised the degree of care and skill of the average qualified practitioner, taking
into account the advances in the profession.

A physician who holds himself out as a specialist should be held to the

standard of care and skill of the average member of the profession practicing the
specialty, taking into account the advances in the profession.

B. THE CAPTAIN OF THE SHIP DOCTRINE

The head surgeon is made liable for everything that goes wrong within the
four corners of the operating room.

It enunciates the liability of the surgeon not only for the wrongful acts of
those under his physical control but also those wherein he has extension of control.
C. NOT WARRANTORS
Physicians are not warrantors of cures or insurers against personal injuries
or death of the patient.

D. PROOF
Expert testimony should be offered to prove that the circumstances are
constitutive of conduct falling below the standard of care employed by other
physicians in good standing when performing the same operation.

Medical malpractice can also be established by relying on the doctrine of res

ipsa loquitor; in which case the need of expert testimony is dispensed with because
the injury itself provides the proof of negligence. (Ramos vs. CA, GR No.124354,
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December 29, 1999)

Example: The doctrine was applied in a case of removal of the wrong part of the
body when another part was intended.

Two pronged evidence:

a. Evidence as to the recognized standards of the medical community
in the particular kind of case; and
b. A showing that the physician departed from this standard in his
treatment.

Four elements in medical negligence cases: duty, breach, injury and proximate
causation

E. LIABILITY OF HOSPITALS AND CONSULTANTS

There is no employer-employee relationship between the hospital and a
physician admitted in the said hospital’s medical staff as an active or visiting
consultant which would hold the hospital liable solidarily liable for the injury
suffered by a patient under Article 2180 of the Civil Code. (Ramos vs. CA GR No
124354, April 11, 2002)

The contract between the consultant and the patient is separate and distinct
the contract between the hospital and the patient. The first has for its object the
rendition of medical services by the consultant to the patient, while the second
concerns the provision by the hospital of facilities and services by its staff such as
nurses and laboratory personnel necessary for the proper treatment of the patient.
(Ramos vs. CA GR No 124354, April 11, 2002)

7. Lawyers
An attorney is not bound to exercise extraordinary diligence but only a
reasonable degree of care and skill, having reference to the business he
undertakes to do.

DEFENSES IN NEGLIGENCE CASES

Kinds of defenses:
• Complete – completely bars recovery
• Partial – mitigates liability

1. PLAINTIFFS CONDUCT AND CONTRIBUTORY NEGLIGENCE

a. Plaintiffs own negligence as the proximate cause
When the plaintiffs own negligence was the immediate and proximate
cause of his injury, he cannot recover damages. (Article 2179 Civil Code)

b. Contributory negligence
Conduct on the part of the injured party contributing as a legal cause to
the harm he has suffered which falls below the standard to which he is required to
conform for his own protection. (Valenzuela vs. CA 253SCRA303)

If the plaintiffs negligence was only contributory, the immediate and

proximate cause of the injury being the defendant’s lack of due care, the plaintiff
may recover damages but the courts shall mitigate the damages to be awarded
(Article 2179 Civil Code).

Doctrine of Comparative Negligence

The relative degree of negligence of the parties is considered in determining
whether and to what degree, either should be responsible for his negligence
(apportionment of damages).
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This is the doctrine being applied in our jurisdiction wherein the contributory
negligence of the plaintiff does not completely bar recovery but merely results in
mitigation of liability; it is a partial defense.
 The court is free to determine the extent of the mitigation of the defendant’s
liability depending upon the circumstances.

2. IMPUTED CONTRIBUTORY NEGLIGENCE

Negligence is imputed if the actor is different from the person who is
being made liable.
• The defendant will be subject to mitigated liability even if the plaintiff was not
himself personally negligent but because the negligence of another is
imputed to the plaintiff.
• It is applicable if the negligence was on the part of the person for whom the
plaintiff is responsible, and especially, by negligence of an associate in the
transaction where he was injured.

3. FORTUITOUS EVENTS
Essential requisites
• The cause of the unforeseen and unexpected occurrence, or of the failure of
the debtor to comply with his obligation, must be independent of the human
will;
• It must be impossible to foresee the event which constitutes the “caso
fortuito,” or if it can be foreseen, it must be impossible to avoid;
• The occurrence must be such as to render it impossible for the debtor to
fulfill his obligation in a normal manner; and
• The obligor must be free from any participation in the aggravation of the
injury resulting to the creditor.

NOTE: When an act of God concurs with the negligence of defendant to produce
an injury, the defendant is liable if the injury would not have resulted but for his
own negligent conduct or omission. The whole occurrence is humanized and
removed from the rules applicable to acts of God. (NAPOCOR vs. CA [1993])

GENERAL RULE: It is a complete defense and a person is not liable if the cause of
the damage is a fortuitous event.
EXCEPTION: It is merely a partial defense and the courts may mitigate the
damages if the loss would have resulted in any event (Art. 2215(4) Civil Code).

4. ASSUMPTION OF RISK
Volenti non fit injuria: One is not legally injured if he has consented to the act
complained of or was willing that it should occur.
• It is a complete defense.
Elements:
• The plaintiff must know that the risk is present;
• He must further understand its nature; and that
• His choice to incur it is free and voluntary.

KINDS:
a. Express waiver of the right to recover
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.

NOTE: A person cannot contract away his right to recover damages

resulting from negligence. Such waiver is contrary to public policy and cannot be
allowed. However, the waiver contemplated by this prohibition is the waiver of the
right to recover before the negligent act was committed.
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If waiver was made after the cause of action accrued, the waiver is valid and
may be construed as a condonation of the obligation.
 b. Implied Assumptions
i. Dangerous Conditions
A person who, knowing that he is exposed to a dangerous condition voluntarily
assumes the risk of such dangerous condition may not recover from the defendant
who maintained such dangerous conditions.

Example: A person who main-tained his house near a railroad track assumes the
usual dangers attendant to the opera-tion of a locomotive. (Rodrigueza vs. Manila
Railroad Co., GR No. 15688, Nov. 19, 1921).

ii. Contractual Relations

There may be implied assumption of risk if the plaintiff entered into a
contractual relation with the defendant. By entering into a relationship freely and
voluntarily where the negligence of the defendant is obvious, the plaintiff may be
found to accept and consent to it.

EXAMPLES:
a) The employees assume the ordinary risks inherent in the industry in
which he is employed.
- As to abnormal risks, there must be cogent and convincing evidence of
consent.
b) When a passenger boards a common carrier, he takes the risks
incidental to the mode of travel he has taken.

iii. Dangerous Activities

Persons who voluntarily participate in dangerous activities assume the risks
which are usually present in such activities.

EXAMPLE: A professional athlete is deemed to assume the risks of injury to their

trade.

iv. Defendant’s negligence

When the plaintiff is aware of the risk created by the defendant’s negligence,
yet he voluntarily decided to proceed to encounter it, there is an implied admission.

EXAMPLE: If the plaintiff has been supplied with a product which he knows to be
unsafe, he is deemed to have assumed the risk of using such unsafe product.

5. DEATH OF THE DEFENDANT

Death of the defendant does not extinguish the obligation based on quasi-
delict.

An action survives even if the defendant dies during the pendency of the
case if the case is an action to recover for an injury to persons or property by
reason of tort committed by the deceased. It is no defense at all.

6. PRESCRIPTION
An action based on quasi-delict prescribes in four years from the date of the
accidental. (Article 1146 Civil Code)

Relations Back Doctrine

An act done at one time is considered by fiction of law to have been done at
some antecedent period. (Allied Banking Corp vs. CA, 1989)

EXAMPLE: A doctor negligently transfused blood to a patient that was

contaminated with HIV. If the effect became apparent only after five (5) years, the
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four (4) year prescriptive period should commence only when it was discovered.

7. INVOLUNTARINESS
 It is a complete defense in quasi-delict cases and the defendant is therefore
not liable if force was exerted on him. (Aquino, Torts and Damages)

EXAMPLE: When the defendant was forced to drive his vehicle by armed men. He
was, at pain of death, forced to drive at a very fast clip because the armed men
were escaping from the policemen. The defendant cannot be held liable, if a
bystander is hit as a consequence.
Causation

Proximate Cause
That cause which in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, without which the result would not
have occurred.

Remote Cause
That cause which some independent force merely took advantage of to
accomplish something not the natural effect thereof.

Nearest Cause
• That cause which is the last link in the chain of events; the nearest in point
of time or relation.
• Proximate cause is not necessarily the nearest cause but that which is the
procuring efficient and predominant cause.

Concurrent Causes
The actor is liable even if the active and substantially simultaneous
operation of the effects of a third person’s innocent, tortious or criminal act is also a
substantial factor in bringing about the harm so long as the actor’s negligent
conduct actively and continuously operate to bring about harm to another. (Africa
vs. Caltex)

Where several causes producing the 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.

Where the concurrent or successive negligent acts or omissions of two or

more persons, although acting independently, are in combination the direct and
proximate cause of a single injury to a third person, and it is impossible to
determine what proportion each contributed to the injury, either of them is
responsible for the whole injury, even though his act alone might not have caused
the entire injury; they become joint tort-feasors and are solidarily liable for the
resulting damage under Article 2194 of the Civil Code.

NOTE: Primary cause remains the proximate cause even if there is an

intervening cause which merely cooperated with the primary cause and which did
not break the chain of causation.

Tests of Proximate Cause

Two-part test
1. Cause-in-fact Test
2. Policy Test

NOTE: In determining the proximate cause of the injury, it is first necessary

to determine if the defendant’s negligence was the cause-in-fact of the damage to
the plaintiff. (Cause-in-fact test)
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• If the defendant’s negligence was not the cause-in-fact, the inquiry

stops.
 • If it is, the inquiry shifts to the question of limit of the defendant’s liability.
(Policy test)

CAUSE-IN-FACT TESTS

1. But-For Test
The defendant’s conduct is the cause-in-fact if damage would not have
resulted had there been no negligence on the part of the defendant. Conversely,
defendant’s negligent conduct is not the cause in fact of the plaintiff’s damage if the
accident could not have been avoided in the absence thereof.

2. Substantial Factor test

The conduct is the cause-in-fact of the damage if it was a substantial factor
in producing the injuries.

In order to be a substantial factor in producing the harm, the causes set in

motion by the defendant must continue until the moment of the damage or at least
down the setting in motion of the final active injurious force which immediately
produced or preceded the damage.

NOTE: If the defendant’s conduct was already determined to be the

cause in fact of the plaintiff’s damage under the but for test, it is necessarily the
cause in fact of the damage under the substantial factor test.

3. NESS Test
The candidate condition may still be termed as a cause where it is shown to
be a necessary element in just one of several co-present causal set each
independently sufficient for the effect.

Two ways by which co-presence may manifest itself

Duplicative causation
When two or more sets operate simultaneously to produce the effect; the
effect is over-determined.

Pre-emptive causation
When, though coming about first in time, one causal set trumps another
potential set lurking in the background; the causal potency of the latter is frustrated.

Multiple causation
If there are a number of candidate conditions, which, taken one at a time,
would not in fact have been sufficient to cause the accident and the accident was a
cumulative effect of all the candidate conditions.

Policy Tests
1. Foreseeability Test
2. Natural and Probable Consequence Test
3. Natural and Ordinary or Direct Consequence Test
4. Hindsight Test
5. Orbit of Risk Test
6. Substantial Factor Test

Policy Tests may be divided into Two Groups

1. FORESIGHT PERSPECTIVE/ FORESEEABILITY TESTS

• The defendant is not liable for the unforeseeable consequences of his acts
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• Liability is limited within the risk created by defendants’ negligent acts.

2. DIRECT PERSEPECTIVE/ DIRECT COSEQUENCES TESTS

 • The defendant is liable for damages which are beyond the risk.
• Direct consequences are those which follow in sequence from the effect of
defendants act upon conditions existing and forces already in operation at
the time without intervention of any external forces, which come into active
operation later.

Tests applied in the Philippines

New Civil Code has a chapter on Damages which specifies the kind of
damage for which the defendant may be held liable and the extent of damage to be
awarded to the plaintiff.

Cause-in-fact Tests
1. But-for test
2. Substantial Factor test
3. NESS test

Policy test: The directness approach is being applied in this jurisdiction.

NOTE: The definition of proximate cause which includes the element of

foresight is not consistent with the express provision of the Article 2202 of the New
Civil Code; a person may be held liable whether the damage to the plaintiff may be
unforeseen.

Cause and Conditions

• It is no longer practicable to distinguish between cause and condition.
• The defendant may be liable even if only created conditions, if the
conditions resulted in harm to either person or property.

EXAMPLES of Dangerous Conditions:

• Those that are inherently dangerous
• Those where a person places a thing which is not dangerous
in itself in a dangerous position.
• Those involving products and other things which are
dangerous because they are defective.

Efficient Intervening Cause

One which destroys the causal connection between the negligent act and
the injury and thereby negatives liability.

There is NO efficient intervening cause if the force created by the negligent act
or omission have either:
 Remained active itself, or
 Created another force which remained active until it directly caused the
result, or
 Created a new active risk of being acted upon by the active force that
caused the result.

EXAMPLE: The medical findings, show that the infection of the wound by tetanus
was an efficient intervening cause later or between the time Javier was wounded to
the time of his death. (People vs. Rellin 77 Phil 1038)

NOTES:
•
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A cause is not an intervening cause if it was already in operation at the time

the negligent act is committed.
 • Foreseeable intervening causes cannot be considered sufficient intervening
causes.
• The intervention of unforeseen and unexpected cause is not sufficient to
relieve the wrongdoer from consequences of negligence if such negligence
directly and proximately cooperates with the independent cause in the
resulting injury.

CONTRIBUTORY NEGLIGENCE

A. Plaintiff’s negligence is the cause

Plaintiff’s negligence is not contributory if it is necessary and sufficient to
produce the result.

EXAMPLES:
• Only the plaintiff was negligent.
• Defendant’s negligence is not a part of the causal set which is a part of the
causal chain.
• Plaintiff’s negligence was pre-emptive in nature.

B. Compound Causes
Plaintiff’s negligence may have duplicative effect, that it, it is sufficient to
bring about the effect but his negligence occurs simultaneously with the defendant;
the latter’s negligence is equally sufficient but not necessary to bring about the
effect because damage would still have resulted due to the negligence of the
plaintiff.

Plaintiff’s negligence is not merely contributory because it is a concurring

proximate cause.

No recovery can be had. (Aquino, Torts and Damages)

C. Part of the same causal set

Neither plaintiff’s negligence nor defendant’s negligence alone is sufficient
to cause the injury; the effect would result only if both are present together with
normal background conditions.

Negligence of the plaintiff cooperated with the negligence of the defendant

in order to bring about the injury; determination of proximate cause is only a matter
of degree of participation.

D. Defendant’s Negligence is the Only cause

Defendant’s negligence was sufficient AND necessary to bring about the
injury. However, if plaintiff’s negligence increased or aggravated the resulting
damage or injury liability of the defendant should also be mitigated under
contributory negligence rule or under the doctrine of avoidable consequences.

Doctrine of Last Clear Chance or Discovered Peril

The negligence of the plaintiff does not preclude a recovery for the
negligence of the defendant where it appears that the defendant, by exercising
reasonable care and prudence, might have avoided injurious consequences to the
plaintiff notwithstanding the plaintiff’s negligence.
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Alternative Views
1. Prevailing view
 • Doctrine is applicable in this jurisdiction.
• Even if plaintiff was guilty of antecedent negligence, the defendant is still
liable because he had the last clear chance of avoiding the injury.

2. Minority View
• The historical function of the doctrine was to mitigate the harshness of the
common law rule of contributory negligence which prevented any recovery
at all by the plaintiff who was also negligent even if his negligence was
relatively minor as compared with the wrongful act or omission of the
defendant.
• The doctrine has no role in this jurisdiction where common law concept of
contributory negligence has itself been rejected in Article 2179 of the Civil
Code.

3. Third View
• There can be no conflict between the doctrine of last clear chance and
doctrine of comparative negligence if the former is viewed as a rule or
phrase of proximate cause;
• However, the doctrine of last clear chance is no longer applicable if the force
created by the plaintiff’s negligence continues until the happening of the
injurious event.

Cases when the doctrine was held inapplicable

• If the plaintiff was not negligent.
• The party charged is required to act instantaneously, and if the injury cannot
be avoided by the application of all the means at hand after the peril is or
should have been discovered.
• If defendant’s negligence is a concurrent cause and which was still in
operation up to the time the injury was inflicted.
• Where the plaintiff, a passenger, filed an action against a carrier based on
contract.
• If the actor, though negligent, was not aware of the danger or risk brought
about by the prior fraud or negligent act.

Intentional Trorts
Include conduct where the actor desires to cause the consequences of his
act or believes that the consequences are substantially certain to result from it.

They are found in Chapter 2 of the Preliminary Title of the NCC entitled
“Human Relations”. Although this chapter covers negligent acts, the torts mentioned
herein are mostly intentional in nature or torts involving malice or bad faith.

Human Relation

1. Principle of Abuse of Rights (ART.19)

Elements:
a. Legal right or duty;
b. The right or duty is exercised in bad faith; and
c. For the sole intent of prejudicing or injuring another.

EXAMPLE: If the principal unreasonably terminated an agency agreement for

selfish reasons. (Valenzuela vs. CA, 190 SCRA 1)

NOTE: This rule is a departure from the traditional view that a person is not
Page38

liable for damages resulting from the exercise of ones right.

2. Article 20 of the Civil Code

 Speaks of the general sanction for all other provisions of law which do not
especially provide for their own sanction.

NOTE: Article 20 does not distinguish; the act may be done willfully or
negligently.
3. Acts contra bonus mores (Article 21 Civil Code)
Elements:
a. Act which is legal;
b. The act is contrary to morals, good customs, public order or public
policy; and
c. The act is done with intent to injure.
NOTE: Damages are recoverable even if no positive law was violated

Kinds:

a. Breach of promise to marry

GENERAL RULE: Breach of promise to marry by itself is not actionable.

EXCEPTION: In cases where there is another act independent of the breach of
promise to marry which gives rise to liability:
1. Cases where there was financial damage.
2. Social humiliation caused to one of the parties.
3. Where there was moral seduction.

NOTES:
• Moral seduction, although not punishable, connotes the idea of deceit,
enticement, superior power or abuse of confidence on the part of the
seducer to which the woman has yielded. (Gashem Shokat Baksh vs. CA)
• Sexual intercourse is not by itself a basis for recovery; damages could only
be awarded if the sexual intercourse is not a product of voluntariness or
mutual desire.
b. Seduction without breach of promise to marry

• Seduction, by itself, is also an act contrary to morals, good customs and

public policy.
• The defendant is liable if he employed deceit, enticement, superior power or
abuse of confidence in successfully having sexual intercourse with another
even if he satisfied his lust without promising to marry the offended party.
• It may not even matter that the plaintiff and the defendant are of the same
gender.
c. Sexual assault
Defendant is liable for all forms of sexual assault including crimes defined
under the RPC as rape, acts of lasciviousness and seduction.

d. Desertion by a spouse
• A spouse has a legal obligation to live with his/her spouse.
• If a spouse does not perform his/her duty to the other, he may be liable for
damages for such omission because the same is contrary to law, morals,
good customs and public policy.

e. Trespass and Deprivation of Property

2 KINDS:
Trespass to and/or deprivation of real property
• Liability for damages under the RPC and Article 451 of the Civil Code
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requires intent or bad faith.

 • Article 448 of the Civil Code in relation to Article 456 does not permit
action for damages where the builder, planter, or sower acted in good
faith. The landowner is limited to the options given to him under article
448, that is to appropriate whatever is built or planted or to compel the
builder or planter to purchase the portion encroached upon. (Aquino, Torts
and Damages)
• A builder in good faith who acted negligently may be held liable under
Art. 2176 NCC.
Trespass to or deprivation of personal property
• In the field of tort, trespass extends to all cases where a person is
deprived of his personal property even in the absence of criminal liability.

NOTE: It may cover cases where the defendant was deprived of personal
property for the purpose of obtaining possession of real property

EXAMPLE: The defendant who was landlord, was held liable because he
deprived the plaintiffs, his tenants, of water in order to force them to vacate the
lot they were cultivating. (Magbanua vs. IAC 137 SCRA 352)

Disconnection of electricity or gas service

• The right to disconnect and deprive the customer, who unreasonably
fails to pay his bills, of electricity should be exercised in accordance with
the law and rules.

Example: If a company disconnects the electricity service without prior notice as

required by the rules, the company commits a tort under Article 21 NCC.

f. Abortion and Wrongful Death

Damages may be recovered by both spouses if:
1) the abortion was caused through the physician’s negligence, or
2) was done intentionally without their consent
Husband of a woman who voluntarily procured her abortion may recover
damages from the physician who caused the same on account of distress and
mental anguish attendant to the loss of the unborn child and the disappointment of
his parental expectation. (Geluz vs. CA 2SCRA802)

g. Illegal Dismissal
The right of the employer to dismiss an employee should not be confused
with the manner in which the right is exercised and the effects flowing therefrom;

If the dismissal was done anti-socially and oppressively, the employer

should be deemed to have violated Article 1701 of the Civil Code (which prohibits
acts of oppression by either capital or labor against the other) and Article 21 NCC.

An employer may be held liable for damages if the manner of dismissing is

contrary to morals good customs and public policy.

EXAMPLE: False imputation of misdeed to justify dismissal or any similar manner

of dismissal which is done abusively.

h. Malicious Prosecution
An action for damages brought by one against another whom a criminal
prosecution, civil suit, or other legal proceeding has been instituted maliciously and
without probable cause, after the termination of such prosecution, suit or
proceeding in favor of the defendant therein.
Page38

The gist of the action is putting legal process in force regularly, for mere
purpose of vexation or injury. (Drilon vs. CA [1997])
Elements
a. The fact of the prosecution and the further fact that the defendant was
himself the prosecutor; and that the action was finally terminated with an
acquittal;
b. That in bringing the action, the prosecutor acted without probable cause;
c. The prosecutor was actuated or impelled by legal malice.

NOTES:
• Malice is the inexcusable intent to injure, oppress, vex, annoy or
humiliate.
• Presence of probable cause signifies absence of malice.
• Absence of malice signifies good faith on the part of the defendant; good
faith may even be based on mistake of law.
• Acquittal presupposes that a criminal information is filed in court and
final judgment rendered dismissing the case; nevertheless, prior
acquittal may include dismissal by the prosecutor after preliminary
investigation. (Globe Mackay and Radio Corp. vs. CA; Manila Gas Corp vs. CA)

i. Public Humiliation
Damages may be awarded in cases where the plaintiff suffered humiliation
through the positive acts of the defendant directed against the plaintiff.

Example: The defendant was held liable for damages under Art. 21 for slapping the
plaintiff in public. (Patricio vs. Hon. Oscar Leviste, [1989])

NOTES:
• Under Article 21, damages are recoverable even though no positive law was
violated.
• An action can only prosper when damage, material or otherwise, was
suffered by the plaintiff. An action based on Articles 19-21 will be dismissed
if the plaintiff merely seeks “recognition”.
• Under Articles 19 and 21, the defendant may likewise be guilty of a tort even
if he acted in good faith. (Grand Union Supermarket vs. Espino)

TORTS AGAINST HUMAN DIGNITY TYPES

1. Violation of the right of privacy

• Reasonableness of a person’s expectation of privacy depends on a two-part
test:
a. Whether by his conduct, the individual has exhibited an expectation of
privacy.
b. Whether this expectation is one that the society recognizes as reasonable.

NOTES:
GENERAL RULE: Right to privacy can be invoked only by natural persons; Juridical
persons cannot invoke such right because the entire basis of right to privacy is an
injury to the feelings and sensibilities of a party, a corporation would have no such
ground.
EXCEPTION: Right against unreasonable searches and seizure can be invoked by a
juridical entity.

GENERAL RULE: Right to privacy is purely personal in nature, hence:

• It can be invoked only by the person whose privacy is claimed to
have been violated.
• It can be subject to waiver of the person whose privacy is sought to
be intruded into.
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• The right ceases upon the death of the person.

EXCEPTION: A privilege may be given to the surviving relatives of a deceased
person to protect his memory but the privilege exist for the benefit of the living, to
protect their feelings and to prevent the violation of their own rights in the character
and memory of the deceased.

Standard to be applied in determining if there was a violation of the right is

that of a person with ordinary sensibilities. It is relative to the customs of time and
place and is determined by the norm of an ordinary person.

Four Types of Invasion of Privacy

a. Intrusion upon plaintiff’s seclusion or solitude

or into his private affairs

It is not limited to cases where the defendant physically trespassed into

another’s property. It includes cases when the defendant invades one’s privacy by
looking from outside (Example: “peeping-tom”).

GENERAL RULE: There is no invasion of right to privacy when a journalist records

photographs or writes about something that occurs in public places.
EXCEPTION: When the acts of the journalist should be to such extent that it
constitutes harassment or overzealous shadowing.

The freedom of the press has never been construed to accord newsmen
immunity from tort or crimes committed during the course of the newsgathering.

• There is no intrusion when an employer investigates an employee or

when the school investigates its student.
• RA 4200 makes it illegal for any person not authorized by all the parties
to any private communication to secretly record such communication by
means of a tape recorder (Ramirez vs CA, Sept. 28, 1995)
• Use of a telephone extension for purposes of overhearing a private
conversation without authorization does not violate RA 4200.

NOTE: There are instances where the school might be called upon to exercise its
power over its student for acts committed outside the school premises and beyond
school hours in the following:
1. In cases of violation of school policies or regulations occurring in connection
with school sponsored activity off-campus; or
2. In cases where the misconduct of the student involves his status as a
student or affects the good name and reputation of the school.

b. Publication of Embarrassing Private Facts

Requisites:
• Publicity is given to any private or purely personal information about
a person;
• Without the latter’s consent; and
• Regardless of whether or not such publicity constitutes a criminal
offense, like libel or defamation, the circumstance that the
publication was made with intent of gain or for commercial and
business purposes invariably serves to aggravate the violation of the
Page38

right.
 PUBLIC FIGURE - A person, who by his accomplishments, fame or mode of
living or by adopting a profession or calling which gives the public a legitimate
interest in his doings, his affairs and his character.

NOTE: Public figures, most especially those holding responsible positions in

government enjoy a more limited right to privacy compared to ordinary individuals.
• The interest sought to be protected is the right to be free from
unwarranted publicity, from the wrongful publicizing of the private affairs
and activities of an individual which are outside the realm of legitimate
public concern.
• The publication of facts derived from the records of official proceedings
which are not otherwise declared by law as confidential, cannot be
considered a tortious conduct.

c. Publicity which places a person in a false light

in the public eye
The interest to be protected in this tort is the interest of the individual in
not being made to appear before the public in an objectionable false light or
false position.

EXAMPLE: Defendant was held liable for damages when he published an

unauthorized biography of a famous baseball player exaggerating his feats on
the baseball field, portraying him as a war hero. (Spahn vs. Messner)
• If the publicity given to the plaintiff is defamatory, hence an action for
libel is also warranted; the action for invasion of privacy will afford an
alternative remedy.
• May be committed by the media by distorting a news report.

Tort of Putting Defamation

Another in False Light

1. As to gravamen of claim
The gravamen of The gravamen of
claim is not the claim is the reputa-
reputational harm but tional harm
rather the
embarrassment of a
person being made
into some-thing he is
not
2. As to publication
The statement should Publication is satisfied
be actually made in if a letter is sent to a
public third person
3. As to the defamatory character of the
statements
Defendant may still be What is published
held liable even if the lowers the esteem in
statements tells which the plaintiff is
something good about held
the plaintiff

d. Commercial appropriation of likeness

The unwarranted publication of a person’s name or the unauthorized
use of his photograph or likeness for commercial purposes is an invasion of
Page38

privacy.
 With respect to celebrities, however, the right of publicity is often treated
as a separate right that overlaps but is distinct from the right of privacy. They
treat their names and likeness as property and they want to control and profit
therefrom.

2. Interference with Family and other relations

The gist of the tort is an interference with one spouse’s mental attitude
toward the other and the conjugal kindness of marital relations resulting in some
actual conduct which materially affects it.
It extends to all cases of wrongful interference in the family affairs of others
whereby one spouse is induced to leave the other spouse or conduct himself or
herself that the comfort of married life is destroyed.

If the interference is by the parents of the spouse, malice must be proven.

3. Intriguing to Cause Alienation

4. Vexation and Humiliation

Discrimination against a person on account of his physical defect, which
causes emotional distress, may result in liability on the part of the offending party.

Sexual Harassment falls under this category.

A civil action separate and distinct from the criminal action may be
commenced under RA 7877.

2 types of Sexual harassment

a) quid pro quo cases
b) hostile environment cases

TORTS WITH INDEOENDENT CIVIL ACTIONS

1. Violation of civil and political rights (Article 32)
Although the same normally involves intentional acts, it can also be
committed through negligence.

Public officer who is a defendant cannot escape liability under the doctrine
of state immunity; the said doctrine applies only if acts involved are done by officers
in the performance of their official duty within the ambit of their powers; officers do
not tact within the ambit of their powers if they violate the constitutional rights of
persons.

2. Defamation, Fraud, and Physical injuries (Article 33)

Defamation
Defamation is an invasion of the interest in reputation and good name,
by communication to others which tends to diminish the esteem in which the
plaintiff is held, or to excite adverse feelings or opinion against him.

Includes the crime of libel and slander.

RPC considers the statement defamatory if it is an imputation of

circumstance tending to cause the dishonor, discredit or contempt of natural or
juridical person or to blacken the memory of one who is dead.
Page38

Requisites for one to be liable for defamatory imputations:

a. It must be defamatory
b. It must be malicious
 c. It must be given publicity
d. The victim must be identifiable

NOTES:
• Test in determining the defamatory character of the imputation: A charge is
sufficient if the words are calculated to induce the hearers to suppose and
understand that the person/s against whom they were uttered were guilty of
a certain offense, or are sufficient to impeach their honesty, virtue, or
reputation, or to hold the person/s up to public ridicule.
• Dissemination to a number of persons is not required, communication to a
single individual is sufficient publication.
GENERAL RULE: Every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention or justifiable motive for making it is shown.
EXCEPTIONS:
• A private communication made by any person to another in the
performance of any legal, moral or social duty; and
• A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which
are not of confidential nature, or of any statement, report, or speech
delivered in said proceedings or of any other act performed by public
officers in the exercise of their functions.

It is not sufficient that the offended party recognized himself as the person
attacked or defamed, it must be shown that at least a third person could identify him
as the object of the libelous publication.

In order to escape liability, the defendant may claim that the statements
made are privileged.

Two kinds of privileged communication

1) Absolutely privilege – Those which are not actionable even if the
author acted in bad faith.
2) Qualifiedly privilege – not actionable unless found to have been
made without good intention or justifiable motive.
Fraud
Elements of deceit
• The defendant must have made false representation to the plaintiff
• The representation must be one of fact
• The defendant must know that the representation is false or be reckless
about whether it is false
• The defendant must have acted on the false representation
• The defendant must have intended that the false representation should be
acted on
• The plaintiff must have suffered damage as a result of acting on the false
representation

Half-truths are likewise included; it is actionable if the withholding of that

which is not stated makes that which is stated absolutely false.
Misrepresentation upon a mere matter of opinion is not an actionable
deceit.

Physical injuries
Battery – an intentional infliction of a harmful or offensive bodily contact; bodily
contact is offensive if it offends a reasonable person’s sense of dignity.
Page38

Assault – intentional conduct by one person directed at another which places

the latter in apprehension of immediate bodily harm or offensive act.
 Includes bodily injuries causing death.
Physical injuries which resulted because of negligence or imprudence is
not included in Article 33; they are already covered by Article 2176 of the Civil
Code.

3. Neglect of duty by police officers (Article 34)

Subsidiary liability of cities and municipalities, is imposed so that they
will exercise great care in selecting conscientious and duly qualified policemen
and exercise supervision over them in the performance of their duties.

CIVIL LIABILITY ARISING FROM DELICT

• Every person criminally liable for a felony is also civilly liable. (Article 100 RPC)
• The reason is because a crime has a dual character: as an offense against
the State and against the private person injured by it.
• Dual character of crimes applies to cases governed by special laws.
Example: violation of the BP 22 results in criminal and civil liability.
• There is civil liability even if the offense is a public offense, like in bigamy.
• Persons liable are the principal, accomplice and accessories.
• It includes restitution, reparation of damages and indemnification of
consequential damages.
• The rule on proximate cause in quasi-delict cases is applicable to cases
involving civil liability arising from delict. Art. 2202, NCC

Circumstances affecting Civil Liability

1. Justifying circumstances
Defendant is free from civil liability if justifying circumstances are
properly establishes.

2. Exempting Circumstances
They do not erase the civil liability.

3. Mitigating and Aggravating Circumstances

Damages to be adjudicated may either be decreased or increased
depending on the presence of mitigating or aggravating circumstances.

Effect of Death
A. DEATH AFTER FINAL JUDGMENT: extinguishes criminal liability of the person
liable but will not extinguish the civil liability.

B. DEATH BEFORE FINAL JUDGMENT:

GENERAL RULE: The defendant is relieved from both criminal and civil liability
arising from criminal liability.
EXCEPTION: In case of libel and physical injuries wherein the plaintiff initially
opted to claim damages in the criminal proceeding can file another case under
Article 33 of the Civil Code.

Effect of Pardon
• Pardon does not erase civil liability.
• While pardon removes the existence of guilt so that in the eyes of the law
the offender is deemed innocent and treated as though he never committed
the offence, it does not operate to remove all the effects of the previous
conviction.
Page38

DEFENDANTS IN TORTS CASES

Concurrent Negligence or Acts
1. Joint Tort-feasors
All the persons who command, instigate, promote, encourage, advice,
countenance, cooperate in, aid, or abet the commission of a tort, or who approve of
it after it is done, if done for their benefit; they are each liable as a principal, to the
same extent and in the same manner as if they have performed the wrongful act
themselves.

The responsibility of two or more persons liable for quasi-delict is solidary

they are not liable pro rata, they are jointly and severally liable
(Article 2194 Civil Code);
for the whole amount.

2. Motor vehicle mishaps

The owner is solidarily liable with the driver, if the former, who was in the
vehicle, could have, by the use of due diligence, prevented the misfortune. (Article
2184 Civil Code)

Solidary liability is imposed on the owner not because of his imputed liability
but because his own omission is a concurring proximate cause of the injury.

Vicarious Liability or Doctrine of Imputed Negligence

A person is not only liable for torts committed by himself, but also for torts
committed by others with whom he has a certain relation or for whom he is
responsible. (Article 2180 Civil Code)

Exercise of diligence of a good father of a family to prevent damage is a

defense.

Doctrine of Respondeat Superior

The liability is strictly imputed, the employer is liable not because of his act
or omission but because of the act or omission of the employee; employer cannot
escape liability by claiming that he exercised due diligence in the selection or
supervision of the employee.

GENERAL RULE: Vicarious liability in the Philippines is not governed by the doctrine
of respondeat superior; employers or parents are made liable not only because of
the negligent or wrongful act of the person for whom they are responsible but also
because of their own negligence:
• Liability is imposed on the employer because he failed to exercise
due diligence in the selection or supervision of the employee
• Parents are made liable because they failed to exercise due
diligence
EXCEPTION: Doctrine of respondeat superior is applicable in:
• liability of employers under Article 103 of the RPC
• liability of a partnership for the tort committed by a partner
Persons Vicariously Liable: (Article 2180 of the Civil Code)
1. The Father, or in case of death or incapacity, mother
• For damage caused by:
a. minor children
b. living in their company

This has already been modified by Art. 221 of the Family Code to the extent
that the alternative qualification of the liability of the father and the mother has been
removed.

NOTES:
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• The basis of liability for the acts or omissions of their minor children is
the parental authority that they exercise over them, except for children
18 to 21.
 • The same foreseability test of negligence should apply to parents when
they are sought to be held liable under Art. 2180, NCC
• The liability is not limited to parents, the same is also imposed on those
exercising substitute and special parental authority, i.e., guardian.
• The liability is present only both under Art 2180 of the NCC and Art 221
of the Family Code if the child is living in his parents’ company.
• Parental authority is not the sole basis of liability. A teacher in charge is
still liable for the acts of their students even if the minor student reaches
the age of majority.
• The parents or guardians can still be held liable even if the minor is
already emancipated provided that he is below 21 years of age.
• Parents and other persons exercising parental authority can escape
liability by proving that they observed all the diligence of a good father of
a family to prevent damages. (Art. 2180)
• The burden of proof rests on the parents and persons exercising
parental authority.

1. Guardians
• For damage caused by:
a. minors or incapacitated persons
b. under their authority
c. living in their company

2. Owners and managers of establishments

• For damage caused by:
a. their employees
b. in the service of the branches in which they are employed, or
c. on the occasion of their functions
3. Employers
• For damages cause by:
a. employees and household helpers
b. acting within the scope of their assigned tasks
c. even if the employer is not engaged in any business or
industry

NOTES:
• Liability of the employer can be established by proving the existence of an
employer-employee relationship with the actor and the latter caused the
injury while performing his assigned task or functions.
• The vicarious liability attaches only when the tortuous conduct of the
employees relates to or is in the course of his employment.
• While the employer incurs no liability when an employee’s conduct, act or
omission is beyond the range of employment, a minor deviation from the
assigned task of an employee, however does not affect the liability of an
employer. (Valenzuela vs. CA, 253 SCRA 303)
• It is a defense that the employer exercised proper diligence in the selection
and supervision of negligent employee.

4. State
• For damage caused by:
a. a special agent
b. not when the damage has been caused by the official to
whom the task done properly pertains
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Public officers who are guilty of tortuous conduct are personally liable for
their actions.
 5. Schools, Teachers and Administrators
• For damage caused by:
a. pupils and students or apprentices
b. in their custody
statutory basis:
if student is minor – Art. 219, FC
if student is no longer a minor – Art. 2180, Civil Code

NOTES:
• Applies also to teachers of academic institutions.
• Liability attaches to the teacher-in-charge.
• The school itself is now solidarily liable with the teacher-in-charge.
• The liability extends to acts committed even outside the school so long as it
is an official activity of the school.
• Whenever the school or teacher is being made liable, the parents and those
exercising substitute parental authority are not free from liability because
Art. 219 of the Family Code expressly provides that they are subsidiarily
liable.
• Art. 2180 makes teachers and heads liable for acts of students and
apprentices whether the latter are minors or not.

GENERAL RULE: The teacher-in-charge is liable for the acts of his students. The
school and administrators are not liable.
EXCEPTION: It is only the head of the school, not the teacher who is held liable
where the injury is caused in a school of arts and trade.
• The liability of the teacher subsists whether the school is academic or
non- academic.
• Liability is imposed only if the pupil is already in the custody of the
teacher or head. The student is in the custody of the school authorities
as longs as he is under the control and influence of the school and
within its premises whether the semester had not yet begun or has
already ended.
• The victim of negligence is likewise required to exercise due care in
avoiding injury to himself.

Other Persons Vicariously Liable

1. Innkeepers and Hotelkeepers
They are civilly liable for crimes committed in their establishments in cases
of violations of statutes by them, in default of persons criminally liable. (Article 102
Revised Penal Code)

They are subsidiarily liable for the restitution of goods taken by robbery or
theft within their houses from guests lodging therein, or for payment of the value
thereof, provided that:
• The innkeeper was notified in advance of the deposit of such goods
within the inn; and
• The guest shall have followed the directions which such innkeeper or his
representative may have given with respect to the care and vigilance
over the goods.

2. Partnership
Partnership or every partner is liable for torts committed by one of the
partners acting within the scope of the firm business, though they do not participate
in, ratify, or have knowledge of such torts.
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Partners are liable as joint tort-feasors.

Vicarious liability is similar to the common law rule on respondeat superior.

 Liability is entirely imputed and the partnership cannot obviously invoke
diligence in the selection and supervision of the partner.

3. Spouses
a. absolute community of property
• The absolute community property shall be for liabilities incurred by either
spouses by reason of crime or quasi-delict in case of absence or
insufficiency of the exclusive property of the debtor-spouse. (Article 94
Family Code)
• Payments shall be considered advances to be deducted from the share of
the debtor spouse upon liquidation of the community.

b. conjugal partnership of gains

GENERAL RULE: Pecuniary indemni-ties imposed upon the husband or wife are not
chargeable against the conjugal partnership but against the separate properties of
the wrongdoer.
EXCEPTION: Conjugal partnership should be made liable:
1) When the profits have inured to the benefit of the
partnership, or
2) If one of the spouses committed the tort while
performing a business or if the act was supposed to
benefit the partnership.

c. regime of separation of property

• Each spouse is responsible for his/her separate obligation.

STRICT LIABILITY
When the person is made liable independent of fault or negligence upon
submission of proof of certain facts specified by law.

NOTE: Strict liability tort can be committed even if reasonable care was
exercised and regardless of the state of mind of the actor at that time.

TYPES:
1. Animals

GENERAL RULE: The possessor of an animal or whoever may make use of the
same is responsible for the damages which it may cause although it may escape or
be lost.
EXCEPTION: When the damage was caused by force majeure or by the person who
suffered the damage. (Article 2183 Civil Code)

NOTES:
• If the acts of a third person cannot be foreseen or prevented, then the
situation is similar to that of force majeure and the possessor is not liable.
(Francisco, Torts and Damages)
• Art. 2183 is applicable whether the animal is domestic, domesticated, or
wild.

2. Falling objects
The head of a family that lives in a building or a part thereof is responsible
for damages caused by things thrown or falling from the same. (Article 2193 Civil Code)

The term “head of the family” is not limited to the owner of the building, and
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it may even include the lessee thereof. (Dingcong vs. Kanaan, 72 Phil 14)

3. Liability of employers
 • Article 1711 of the NCC imposes an obligation on owners of enterprises and
other employers to pay for the death or injuries to their employees.
• Liability is strict because it exists even if the cause is purely accidental.
• If the mishap was due to the employee’s own notorious negligence, or
voluntary act or drunkenness, the employer shall not be liable for
compensation.
• When the employee’s lack of due care contributed to his death or injury, the
compensation shall be equitably reduced.
• If the death or injury is due to the negligence of a fellow-workman the latter
and the employer shall be solidarily liable for compensation.
• If a fellow-worker’s intentional or malicious act is the only cause of the death
or injury, the employer shall not be answerable unless it should be shown
that the latter did not exercise due diligence in the selection or supervision
of the plaintiff’s fellow-worker.

4. Nuisance
Any act, omission, establishment, business, condition of property, or
anything else which:
a. Injures or endangers the health or safety of others;
b. Annoys or offends the senses;
c. Shocks, defies or disregards decency or morality;
d. Obstructs or interferes with the free passage of any public highway or street, or
any body of water; or
e. Hinders or impairs the user of property. (Article 694 Civil Code)

There is strict liability on the part of the owner or possessor of the property
where a nuisance is found because he is obliged to abate the same irrespective of
the presence or absence of fault or negligence.

Every successive owner or possessor of property who fails or refuses to

abate a nuisance in that property started by a former owner or possessor is liable
therefore in the same manner as the one who created it. (Article 686 Civil Code)

5. Product liability by manufacturers

Manufacturers and processors of foodstuffs, drinks, toilet articles and similar
goods shall be liable for death or injuries caused by any noxious or harmful
substances used, although no contractual relation exists. (Article 2187 Civil Code)

Other cases of liability without fault

Proprietor of a building or structure, for damages resulting from its total or partial
collapse, if it should be due to lack of necessary repairs. .
Breach of implied warranties.
Consumer Act (R.A. 7394) – any Filipino or foreign manufacturer, producer and
importer, independently of fault shall be liable for redress for damages
caused to consumers by defects resulting from:
design;
manufacture;
construction;
assembly and erection;
formulas and handling and making up; or
presentation or packing of their products as well as for the insufficient or inadequate
information on the use and hazards thereof.
4. Even when an act or event causing damage to another’s property was not due
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to the fault or negligence of the defendant, the latter shall be liable for indemnity
if through the act or event he was benefited. (Art. 23 Civil Code)
PRODUCT AND SERVICE LIABILITY

Alternative theories on basis of liability

1. Fraud or misrepresentation
Not all expression of opinion are actionable misrepresentations if they are
established to be inaccurate.

2. Warranties
The Consumer Act recognizes that the provisions of the Civil Code on
conditions and warranties shall govern all contracts of sale with conditions and
warranties.

Retailer shall be subsidiarily liable under the warranty in case of failure of

both the manufacturer and distributor to honor the warranty.

Privity of contract is not necessary.

3. Negligence
In product liability law, certain standards are already imposed by special
laws, rules and regulations of proper government agencies; certain acts or
omissions are expressly prohibited by the statutes thereby making violation thereof
negligence per se.

It is negligence per se if manufacturer manufactured products which do not

comply with the safety standards promulgated by appropriate government
agencies.

4. Delict
The liability may be based on criminal negli-gence under the RPC or
violation of any special law.

5. Strict liability
Manufacturers and processors of foodstuffs, drinks, toilet articles, and
similar goods, shall be liable for death or injuries caused by any noxious or harmful
substances used although no contractual relation exists. (Article 2187 Civil Code)

Privity of contract is not required.

It does not preclude an action based on negligence (quasi-delict) for the

same act of using noxious or harmful substances.

Article 97 and 99 of the Consumer Act imposes liability on defective

products and services upon manufacturers independent of fault.

Knowledge of the manufacturer is not important; the focus is on the

condition of the product and not on the conduct of the manufacturer or seller.

DEFENSES
A. The manufacturer, builder, producer, or importer shall not be liable when it
evidences:
• That it did not place the product on the market
• That although it did place the product on the market such product
had no defect
• That the consumer of third party is solely at fault. (Article 97 Consumer
Act)
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B. The supplier of the services shall not be held liable when it is proven:
• That there is no defect in the service rendered
 • That the consumer of third party is solely at fault. (Article 99 Consumer Act)

Requisites: The plaintiff should allege and prove that:

1) The product was defective;
2) The product was manufactured by the defendant;
3) The defective product was the cause of his injury.

4 KINDS OF DEFECTIVE PRODUCTS

1. manufacturing defect
2. design defect
3. presentation defect
4. absence of appropriate warning

BUSINESS TORTS

Interference of contracts
Elements:
• existence of a valid contract
• knowledge on the part of the third person of the existence of the contract
• interference of the third person without legal justification.

The existence of a contract is necessary and the breach must occur

because of the alleged act of interference; No action can be maintained if the
contract is void.

Malice is not essential.

Elements of privilege to interfere

• The defendant’s purpose is a justifiable one, and
• The actors employ no means of fraud or deception which are regarded as
unfair.

Extent of Liability
A. Rule in Daywalt vs. La Corporation 39PHIL587
Defendant cannot be held liable for more than the amount for which the
contracting party who was induced to break the contract can be held liable.

B. Rule under Article 2201 and 2202 Civil Code

1) If in bad faith: defendant is liable for all natural
and probable consequences of his act or omission, whether the same is forseen
or unforeseen.
2) If in good faith: defandant is liable only for
consequences that can be foreseen.

Interference with prospective advantage

It is a tort committed when there is no contract yet and the defendant is only
being sued for inducing another not to enter into a contract.

Unfair competition
Unfair Competition in agricultural, commercial, or industrial enterprises, or in
labor, through the use of force, intimidation , deceit, machination or any unjust or
oppressive or highhanded method shall give rise to a right of action by a person
who thereby suffers damage. (Article 27 Civil Code)

CASES INCLUDED
a. passing off and disparagement of products
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b. interference
c. misappropriation
d. monopolies and predatory pricing
Securities Related Torts
Kinds
a. Fraudulent Transactions
b. Misstatements or Omission of statement of a material fact required to be
stated

Defendants are free from liability if they can prove that at the time of the
acquisition the plaintiff knew of the untrue statement or if he was aware of the
falsity.

Extent of Damages: Not exceeding triple the amount of the transaction.

Prescriptive Period: Action must be brought within 2 years after discovery of facts
constituting the cause of action and within 5 yrs after such cause of action accrued.

DamageS
I- DAMAGES DEFINED
The pecuniary compensation, recompense or satisfaction for an injury
sustained or as otherwise expressed, the pecuniary consequences which the law
imposes for the breach of some duty or violation of some rights.

II- DISTINCTION FROM OTHER CONCEPTS

Injury Damage Damages

Illegal invasion of a Loss, hurt or harm which The recompense or

legal right results from the injury; compensation awarded
The detriment, injury or for the damage
loss which is occasioned suffered.
by reason of fault of
another in the property or
person.

Damnum absque injuria (Damage Without Injury)

• A person may have suffered physical hurt or injury, but such loss or
harm was not the result of a violation of a legal duty.
• This exists if damage results from a person’s exercising his legal rights.
(Auyong Hian v. CTA, 59 SCRA 110).
• There is no liability even if there is damage because there was no injury.
• There can be damage without injury.
• In order that a plaintiff may maintain an action for the injuries of which he
complains, he must establish that such injuries resulted from a breach of
duty which the defendant owed to the plaintiff.

III- RATIONALE
The fundamental principle or theory on which an award of damages is
based is JUST COMPENSATION. It is indemnity or reparation for the loss or injury
sustained by the injured party so that he may be made whole and restored as
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nearly as possible to the position or condition he was in prior to the injury.( 25 CJS
626).
 Notes:
• A complaint for damages is a personal action. (Baritua vs. CA, 267 SCRA 331)
• Proof of pecuniary loss is necessary to successfully recover actual damages
from the defendant. No proof of pecuniary loss is necessary in case of
moral, nominal, temperate, liquidated or exemplary damages.
• The assessment of such damages, except liquidated ones which the parties
themselves fix, is left to the discretion of the court according to the
circumstances of each case. (Jose Ching Sui Yonng v. IAC, G.R. No. 64398,
November 6,1990)

IV- ELEMENTS OF RECOVERABLE DAMAGES

1. Time Losses – loss of wages or the value of any lost time or earning capacity
where injuries prevent work.

2. Injury Expenses – incurred by reason of injury.

3. Pain and suffering – in their various forms, they include emotional distress and
consciousness of loss.

V- CLASSIFICATION OF DAMAGES
A. General and Special Damages

General Special

• Naturally and necessarily • Such as do in fact accrue

result from the wrong. to the particular individual
by reason of the particular
• They are such as might circumstances of the case.
accrue to any person
similarly situated. • Have proximately resulted
but do not always
• Need not be specifically immediately result from the
pleaded and may be breach and will not
embraced in the general therefore be implied by
plea for “such other relief as law.
may be deemed just and
equitable under the • Must be specifically prayed
premises.” for.

• “If any special damage has

also been suffered, it
should be set out on the
pleadings”

B. Kinds of Damages (MENTAL) (Art. 2197, Civil Code)

1. Actual or Compensatory
2. Moral
3. Nominal
4. Temperate or moderate
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5. Liquidated
6. Exemplary or corrective
1) ACTUAL OR COMPENSATORY DAMAGES
Comprehends not only the value of the loss suffered but also that of the
profits which the obligee failed to obtain.

Classification
1. Dano emergente – loss of what a person already
possesses
2. Lucro cessante – failure to receive as a benefit
that would have pertained to him

NOTE: The latter type includes:

1. Loss or impairment of earning capacity in cases of temporary or
permanent personal injury.
2. Injury to the plaintiff’s business standing or commercial credit.

In crimes and quasi-delict, the defendant shall be liable for all damages
which are the natural and probable consequences of the act and omission
complained of. It is not necessary that such damages have been foreseen or could
have reasonably foreseen by the defendant. (Article 2202 Civil Code)
The amount should be that which would put plaintiff in the same position as
he would have been if he had not sustained the wrong for which he is now getting
his compensation or reparation.

To recover damages, the amount of loss must not only be capable of proof
but must actually be proven.

Uncertainty as to the precise amount is not necessarily fatal.

LOSS OF EARNING CAPACITY

• Variables considered are:
1. life expectancy
2. net income/earnings

Formula:
{2/3 x (80–age of death)} x mo. Earnings x 12
2
NOTE:
• Life expectancy is computed as follows:
{ 2/3 x (80-age at death) }

• Net earnings is the total of the earnings less expenses necessary for the
creation of such earnings and less living or other incidental expenses.

Loss of profits
May be determined by considering the average profit for the preceding
years multiplied by the number of years during which the business was affected by
the wrongful act or breach.

Attorney’s fees
• They are actual damages. It is due to the plaintiff and not to the counsel.
• Plaintiff must allege the basis of his claim for attorney’s fees in the
complaint; the basis should be one of the 11 cases specified in Article 2208
of the Civil Code.

Interests
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• Award of interest in the concept of actual and compensatory damages

actual damages.
 • The rate of interest, as well as the accrual thereof is imposed as follows:
1. When the obligation is breached and it consist of payment of sum of money,
i.e., a loan or forbearance of money:
a. The interest due should be that which may have been stipulated in
writing; furthermore, the interest due shall itself earn legal interest from
the time it is judicially demanded.
b. In the absence of stipulation, the rate of interest shall be 12% per
annum to be computed from default, i.e., from judicial or extra-judicial
demand under and subject to the provisions of Article 1169 of the Civil
Code.
2. When the obligation, not constituting a loan or forbearance or money, is
breached:
• An interest on the amount of damages to be awarded may be
imposed at the discretion of the court at the rate of 6% per annum.
• No interest shall be adjudged on unliquidated claims or damages,
except when or until demand can be established with reasonable
certainty.
• Where the demand is established with reasonable certainty, the
interest shall begin to run from the time the claim is made judicially
or extrajudicially.
3. When the judgment of the court awarding the sum of money becomes final
and executory, the rate of legal interest shall be 12% per annum from such
finality until its satisfaction.

Doctrine of Avoidable Consequences

• A party cannot recover damages flowing from consequences which the
party could reasonably have avoided.
• It has a reasonable corollary: a person who reasonably attempts to
minimize his damages can recover the expenses that he incurred.

Doctrine of Avoidable
Contributory Negligence
Consequences

Acts of the plaintiff occur Plaintiff’s act or omission

after the act or omission of occurs before or at the time
the defendant of the act or omission of the
defendant

2) MORAL DAMAGES
Includes physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and
similar injury.

No proof of pecuniary loss is necessary.

GENERAL RULE: The plaintiff must allege and prove:

1. The factual basis for moral damages; and
2. Its causal relation to the defendant’s act
EXCEPTION: Moral damages may be awarded to the victim in criminal proceedings
without the need for pleading of proof of the basis thereof.

Requisites for award of moral damages

1. There must be an injury whether physical, mental or psychological, clearly
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sustained by the claimant;

2. There must be a culpable act or omission.;
3. Such act or omission is the proximate cause of the injury;
 4. The damages are predicated on the cases cited in Art.2219.

NOTE: The award of moral damages cannot be granted in favor of a corporation

because, being an artificial person, it has no feelings, no emotions, no senses. It
cannot therefore experience physical suffering and mental anguish which can be
experienced only by one having a nervous system.

3) NOMINAL DAMAGES
Nominal damages are adjudicated in order that a right of the plaintiff, which
has been violated or invaded by the defendant, may be vindicated or recognized,
and not for the purpose of indemnifying the plaintiff for any loss suffered by him.
(Article2221 Civil Code)

Small sums fixed by the court without regard to the extent of the harm done
to the injured party.

Law presumes damage although actual or compensatory damages are not

proven.

They are damages in name only and are allowed simply in recognition of a
technical injury based on a violation of a legal right.

Nominal damages cannot co-exist with actual or compensatory damages.

4) TEMPERATE OR MODERATE DAMAGES

These are damages, which are more than nominal but less than
compensatory, and may be recovered when the court finds that some pecuniary
loss has been suffered but its amount cannot be proved with certainty. (Article 2224
Civil Code)

In cases where the resulting injury might be continuing and possible future
complications directly arising from the injury, while certain to occur are difficult to
predict, temperate damages can and should be awarded on top of actual or
compensatory damages; in such cases there is no incompatibility between actual
and temperate damages.

5) LIQUIDATED DAMAGES

definition
Those agreed upon by the parties in a contract, to be paid in case of breach
thereof. In Philippine laws, these damages take the nature of penalties. It is
attached to an obligation to ensure performance.

Nature and concept

In case liquidated damages have been agreed upon, no proof of loss is
necessary in order that such liquidated damages may be recovered. The stipulation
of such is intended to obviate controversy on the amount of damages.

Attorney’s fee is in the concept of actual damages except when stipulated

and therefore in the form of liquidated damages, no proof pecuniary loss is
required.

“The judge shall equitably reduce the penalty when the principal obligation
has been partly or irregularly complied with by the debtor. Even if there has been no
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performance, the penalty may also be reduced by the courts if it is iniquitous or

unconscionable” (Art. 1229, Civil Code)
 Liquidated damages,whether intended as an indemnity or a penalty, shall be
equitably reduced if they are iniquitous or unconscionable. (Art 2227, Civil Code)

The stipulation shall have no effect if the breach does not fall on the one
contemplated by the parties upon agreeing on the liquidated damages. Hence, the
law shall determine the same.

6) EXEMPLARY OR CORRECTIVE DAMAGES

definition
Imposed by way of example or correction for the public good, in addition to
the moral, temperate, liquidated or compensatory damages.

Requisites for the award of exemplary damages

1. They are imposed by way of example in addition to compensatory
damages and Imposed only after the claimants right to them has
been established;
2. They cannot be recovered as a matter of right, their determination
depending upon the amount of compensatory damages that may be
awarded;
3. The act must be accompanied by bad faith or done in wanton,
fraudulent, oppressive or malevolent manner.

Rationale
They are designed to permit the courts to mould behavior that has socially
deleterious consequences, and its imposition is required by public policy to
suppress the wanton acts of an offender. However, a stipulation whereby
exemplary damages are renounced in advance shall be null and void.

Exemplary damages adjudicated

In criminal offenses, exemplary damages are imposed when the crime is
committed with one or more aggravating circumstances. (Art. 2230, Civil Code).
Raping a married woman after forcibly abducting her in the presence of her
husband warrants the award of exemplary damages to deter the commission of
same act for the the public good is in order (People vs. Grefiel, G.R. No. 777228,
November 13, 1992)

In quasi-delicts, such damages are granted if the defendant is shown to

have been so guilty of gross negligence as to approximate malice. (Art. 2231,
Civil Code). Gross negligence which, according to the Court, is equivalent to the
term “notorious negligence” and consists in the failure to exercise even slight
care (Caunan vs. Compania General de Tabacos, 56 Phil 542 (1932))

In contracts and quasi-contracts, the court may award exemplary damages

if the defendant is found to have acted in a wanton, fraudulent, reckless,
oppressive and malevolent manner. (Art. 2332, Civil Code) Such shall be
recoverable in cases of illegal termination. (Spartan Security & Detective
Agency, Inc. vs. NLRC, et al supra)

VII Assessment of Damages

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