TORTS AND DAMAGES:MEMORIZATION(Nov.18,2010) ART.

2176-Whoever by act or omission causes damages to another, there being fault or negligence,is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties , is called quasi-delict and is governed by the provisions of this chapter. ART 2177: Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.

Inscrutable Fault definition: A judicial finding that a fault has occurred but the court is unable to locate the source, to pinpoint a tort-feasor. Volenti Non Fit Injuria-is a common law doctrine which means that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they cannot then sue if harm actually results. Volenti only applies to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to (for example) his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk." Volenti is sometimes described as the plaintiff "consenting to run a risk." In this context, volenti can be distinguished from legal consent in that the latter can prevent some torts arising in the first place (for example, consent to a medical procedure prevents the procedure from being a trespass to the person, or consenting to a person visiting your land prevents them from being a trespasser)

Contributory negligence in common-law jurisdictions is defense to a claim based on negligence, an action in tort. It applies to cases where a plaintiff has, through his own negligence, contributed to the harm he suffered. For example, a pedestrian crosses a road negligently and is hit by a driver who was driving negligently. Contributory negligence is often regarded as unfair because under the doctrine a victim who is at fault to any degree, including only 1% at fault, will be denied compensation entirely.

In some jurisdictions, the defendant has to prove the negligence of a plaintiff or claimant. In others, the burden is on a plaintiff to disprove his own negligence. The tortfeasor may still be held liable if he had the last clear chance to prevent the injury (the last clear chance doctrine)\ Contributory negligence is generally a defense to a tort of negligence. The defense is not available, if the tortfeasor's conduct amounts to malicious or intentional wrongdoing, rather than to ordinary negligence. THE DOCTRINE OF PROXIMATE CAUSE

An act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred. Proximate cause is the primary cause of an injury. It is not necessarily the closest cause in time or space nor the first event that sets in motion a sequence of events leading to an injury. Proximate cause produces particular, foreseeable consequences without the intervention of any independent or unforeseeable cause. It is also known as legal cause. To help determine the proximate cause of an injury in negligence or other tort cases, courts have devised the "but for" or " sine qua non" rule, which considers whether the injury would not have occurred but for the defendant's negligent act. A finding that an injury would not have occurred but for a defendant's act establishes that the particular act or omission is the proximate cause of the harm, but it does not necessarily establish liability since a variety of other factors can come into play in tort actions. Some jurisdictions apply the "substantial factor" formula to determine proximate cause. This rule considers whether the defendant's conduct was a substantial factor in producing the harm. If the act was a substantial factor in bringing about the damage, then the defendant will be held liable unless she can raise a sufficient defense to rebut the claims.

** a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury. There are two elements needed to determine proximate cause: the activity must produce a foreseeable risk, and the injury must be caused directly by the defendant's negligence. There may be more than one proximate cause of an injury or event. The doctrine of proximate cause is notoriously confusing. The doctrine is phrased in the language of causation, but in most of the cases in which it is applied, there is no real dispute that the defendant caused the plaintiff's injury. The doctrine is actually used by judges to limit the scope of the defendant's liability to a subset of the total class of potential plaintiffs who suffered some harm from the defendant's actions. For an understanding of the broader view of causation which proximate cause circumscribes, see Butterfly effect.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 122039 May 31, 2000 VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA, respondents.

MENDOZA, J.: This is a petition for review on certiorari of the decision 1 of the Court of Appeals, dated March 31, 1991, reversing the contrary decision of the Regional Trial Court, Branch 36, Dumaguete City, and awarding damages instead to private respondent Eliza Jujeurche Sunga as plaintiff in an action for breach of contract of carriage. The facts, as found by the Court of Appeals, are as follows: At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then a college freshman majoring in Physical Education at the Siliman University, took a passenger jeepney owned and operated by petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga was given by the conductor an "extension seat," a wooden stool at the back of the door at the rear end of the vehicle. On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As she was seated at the rear of the vehicle, Sunga gave way to the outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio Verena and owned by Francisco Salva bumped the left rear portion of the jeepney. As a result, Sunga was injured. She sustained a fracture of the "distal third of the left tibia-fibula with severe necrosis of the underlying skin." Closed reduction of the fracture, long leg circular casting, and case wedging were done under sedation. Her confinement in the hospital lasted from August 23 to September 7, 1989. Her attending physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would remain on a cast for a period of three months and would have to ambulate in crutches during said period. On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the contract of carriage by the former in failing to exercise the diligence required of him as a common carrier. Calalas, on the other hand, filed a third-party complaint against Francisco Salva, the owner of the Isuzu truck. The lower court rendered judgment against Salva as third-party defendant and absolved Calalas of liability, holding that it was the driver of the Isuzu truck who was responsible for the accident. It took cognizance of another case (Civil Case No. 3490), filed by Calalas against Salva and Verena, for quasi-delict, in which Branch 37 of the same court held Salva and his driver Verena jointly liable to Calalas for the damage to his jeepney. On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that Sunga's cause of action was based on a contract of carriage, not quasi-delict, and that the common carrier failed to exercise the diligence required under the Civil Code. The appellate court dismissed the third-party complaint against Salva and adjudged Calalas liable for damages to Sunga. The dispositive portion of its decision reads: WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and another one is entered ordering defendant-appellee Vicente Calalas to pay plaintiff-appellant: (1) P50,000.00 as actual and compensatory damages; (2) P50,000.00 as moral damages; (3) P10,000.00 as attorney's fees; and (4) P1,000.00 as expenses of litigation; and (5) to pay the costs. SO ORDERED. Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence of Verena was the proximate cause of the accident negates his liability and that to rule otherwise would be to make the common carrier an insurer of the safety of its passengers. He contends that the bumping of the jeepney by the truck owned by Salva was a caso fortuito. Petitioner further assails the award of moral damages to Sunga on the ground that it is not supported by evidence. The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the owner of the truck liable for quasi-delict ignores the fact that she was never a party to that case and, therefore, the principle of res judicata does not apply. Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil Case No. 3490 was whether Salva and his driver Verena were liable for quasi-delict for the damage caused to petitioner's jeepney. On the other hand, the issue in this case is whether petitioner is liable on his contract of carriage. The first, quasi-delict, also known as culpa aquiliana or culpa extra contractual, has as its source the negligence of the tortfeasor. The second, breach of contract or culpa contractual, is premised upon the negligence in the performance of a contractual obligation. Consequently, in quasi-delict, the negligence or fault should be clearly established because it is the basis of the action, whereas in breach of contract, the action can be prosecuted merely by proving the existence of the contract and the fact that the obligor, in this case the common carrier, failed to transport his passenger safely to his destination. 2 In case of death or injuries to passengers, Art. 1756 of the Civil Code provides that common carriers are presumed to have been at fault or to have acted negligently unless they prove that they observed extraordinary diligence as defined in Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the common carrier the burden of proof. There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his driver Verena liable for the damage to petitioner's jeepney, should be binding on Sunga. It is immaterial that the proximate cause of the collision between the jeepney and the truck was the negligence of the truck driver. The doctrine of proximate cause is applicable only in actions for quasi-delict, not in actions involving breach of contract. The doctrine is a device for imputing liability to a person where there is no relation between him and another party. In such a case, the obligation is created by law itself. But, where there is a pre-existing contractual relation between the parties, it is the parties themselves who create the obligation, and the function of the law is merely to regulate the relation thus created. Insofar as contracts of carriage are concerned, some aspects regulated by the Civil Code are those respecting the diligence required of common carriers with regard to the safety of passengers as well as the presumption of negligence in cases of death or injury to passengers. It provides: Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case. Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1746, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756. Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances. Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed by articles 1733 and 1755. In the case at bar, upon the happening of the accident, the presumption of negligence at once arose, and it became the duty of petitioner to prove that he had to observe extraordinary diligence in the care of his passengers. Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances" as required by Art. 1755? We do not think so. Several factors militate against petitioner's contention. First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being exposed about two meters from the broad shoulders of the highway, and facing the middle of the highway in a diagonal angle. This is a violation of the R.A. No. 4136, as amended, or the Land Transportation and Traffic Code, which provides: Sec. 54. Obstruction of Traffic. No person shall drive his motor vehicle in such a manner as to obstruct or impede the passage of any vehicle, nor, while discharging or taking on passengers or loading or unloading freight, obstruct the free passage of other vehicles on the highway. Second, it is undisputed that petitioner's driver took in more passengers than the allowed seating capacity of the jeepney, a violation of 32(a) of the same law. It provides: Exceeding registered capacity. No person operating any motor vehicle shall allow more passengers or more freight or cargo in his vehicle than its registered capacity.

The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which the other passengers were exposed. Therefore, not only was petitioner unable to overcome the presumption of negligence imposed on him for the injury sustained by Sunga, but also, the evidence shows he was actually negligent in transporting passengers. We find it hard to give serious thought to petitioner's contention that Sunga's taking an "extension seat" amounted to an implied assumption of risk. It is akin to arguing that the injuries to the many victims of the tragedies in our seas should not be compensated merely because those passengers assumed a greater risk of drowning by boarding an overloaded ferry. This is also true of petitioner's contention that the jeepney being bumped while it was improperly parked constitutes caso fortuito. A caso fortuito is an event which could not be foreseen, or which, though foreseen, was inevitable. 3 This requires that the following requirements be present: (a) the cause of the breach is independent of the debtor's will; (b) the event is unforeseeable or unavoidable; (c) the event is such as to render it impossible for the debtor to fulfill his obligation in a normal manner, and (d) the debtor did not take part in causing the injury to the creditor. 4 Petitioner should have foreseen the danger of parking his jeepney with its body protruding two meters into the highway. Finally, petitioner challenges the award of moral damages alleging that it is excessive and without basis in law. We find this contention well taken. In awarding moral damages, the Court of Appeals stated: Plaintiff-appellant at the time of the accident was a first-year college student in that school year 1989-1990 at the Silliman University, majoring in Physical Education. Because of the injury, she was not able to enroll in the second semester of that school year. She testified that she had no more intention of continuing with her schooling, because she could not walk and decided not to pursue her degree, major in Physical Education "because of my leg which has a defect already." Plaintiff-appellant likewise testified that even while she was under confinement, she cried in pain because of her injured left foot. As a result of her injury, the Orthopedic Surgeon also certified that she has "residual bowing of the fracture side." She likewise decided not to further pursue Physical Education as her major subject, because "my left leg . . . has a defect already." Those are her physical pains and moral sufferings, the inevitable bedfellows of the injuries that she suffered. Under Article 2219 of the Civil Code, she is entitled to recover moral damages in the sum of P50,000.00, which is fair, just and reasonable. As a general rule, moral damages are not recoverable in actions for damages predicated on a breach of contract for it is not one of the items enumerated under Art. 2219 of the Civil Code. 5 As an exception, such damages are recoverable: (1) in cases in which the mishap results in the death of a passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code; and (2) in the cases in which the carrier is guilty of fraud or bad faith, as provided in Art. 2220. 6 In this case, there is no legal basis for awarding moral damages since there was no factual finding by the appellate court that petitioner acted in bad faith in the performance of the contract of carriage. Sunga's contention that petitioner's admission in open court that the driver of the jeepney failed to assist her in going to a nearby hospital cannot be construed as an admission of bad faith. The fact that it was the driver of the Isuzu truck who took her to the hospital does not imply that petitioner was utterly indifferent to the plight of his injured passenger. If at all, it is merely implied recognition by Verena that he was the one at fault for the accident. WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, dated September 11, 1995, are AFFIRMED, with the MODIFICATION that the award of moral damages is DELETED.

In the law of TORTS, the doctrine that excuses or negates the effect of the plaintiff's contributory Negligence and permits him or her to recover, in particular instances, damages regardless of his or her own lack of ordinary care. The rule of last clear chance operates when the plaintiff negligently enters into an area of danger from which the person cannot extricate himself or herself. The defendant has the final opportunity to prevent the harm that the plaintiff otherwise will suffer. The doctrine was formulated to relieve the severity of

the application of the contributory negligence rule against the plaintiff, which completely bars any recovery if the person was at all negligent. There are as many variations and adaptations of this doctrine as there are jurisdictions that apply it. Four different categories have emerged, which are classified as helpless plaintiffs, inattentive plaintiffs, observant defendants, and inattentive defendants. *** Where the plaintiff's previous negligence has placed him or her in a position from which the person is powerless to extricate himself or herself by the exercise of any ordinary care, and the defendant detects the danger while time remains to avoid it but fails to act, the courts have held that the plaintiff can recover. There must be proof that the defendant discovered the situation, had the time to take action that would have saved the plaintiff, but failed to do what a reasonable person would have done. In the absence of any one of these elements, the courts deny recovery. If the defendant who has a duty to discover the plaintiff's peril does not do so in time to avoid injury to the plaintiff, some courts have permitted recovery under the rationale that the defendant's subsequent negligence is the proximate cause, or direct cause, of the injury, rather than the contributory negligence of the plaintiff. The defendant must have been able to have discovered the peril through appropriate vigilance so as to avoid its harmful consequences to the plaintiff. In another group of cases, the plaintiff is not helpless but is in a position to escape injury. The person's negligence consists of failure to pay attention to his or her surroundings and detect his or her own peril. If the defendant discovers the plaintiff's danger and inattentiveness, and is then negligent, a majority of courts allows the plaintiff to recover. Some courts hold that the defendant must actually recognize the plaintiff's danger and inattention. Most courts apply a more objective standard; they require only that the defendant discover the situation and that the plaintiff's peril and inattentiveness be evident to a reasonable person. The discovery can be proved by Circumstantial Evidence. There is an additional essential qualification that the defendant can frequently, reasonably assume until the last moment that the plaintiff will protect himself or herself, and the defendant has no reason to act until he or she has some notice to the contrary. If the defendant does not discover the plaintiff's situationbut could do so with appropriate vigilance neither party can be viewed as possessing the last clear chance. The plaintiff is still in a position to escape, and his or her inattentiveness persists until the juncture of the accident, without the interval of superior opportunity of the defendant. The plaintiff cannot reasonably demand of the defendant greater care for his or her own protection than that which he or she as plaintiff would exercise for himself or herself. Nearly all of the courts have ruled that, in this situation, there can be no recovery. Observant Defendant The observant defendant is one who actually sees the plaintiff in time to act so as to avoid the harm and assumes that a duty exists to act under the circumstances. The person perceives the plaintiff's helpless or inattentive condition, but thereafter is negligent in failing to act so as to prevent the plaintiff's harm.

In most instances, the defendant's conduct is itself the cause of the plaintiff's danger, but this is not a requirement so long as a duty to act exists. The plaintiff must prove that the defendant actually saw him or her and that a reasonable person would have known that he or she was inattentive or helpless. This is determined by an objective test entailing circumstantial evidence of the defendant's state of mind. The defendant cannot assert unawareness of the plaintiff's powerlessness or inattentiveness when that fact would have been evident to any observer. Inattentive Defendant The inattentive defendant is one who fails to fulfill the duty to maintain a surveillance in order to see the plaintiff in time to avoid the harm, perceive the person's helpless or inattentive condition, and thereby exercise reasonable care to act in time to avoid the harm. Due to the defendant's negligence, however, he or she fails to see the plaintiff in time, and injury occurs. Application of Doctrine There are four possible cases in which the rule of last clear chance can be applied. The typical last clear chance situation involves the helpless plaintiff against the observant defendant, and all courts that accept the doctrine will apply it. The few courts that do not recognize the rule attain the same result under the doctrine of willful and wanton misconduct. In the helpless plaintiff-inattentive defendant and the inattentive plaintiff-observant defendant cases, most jurisdictions that acknowledge the rule apply it. Where the case entails the inattentive plaintiff against the inattentive defendant, the justifications for the rule are eliminated, and nearly all jurisdictions refuse to apply it. The defendant's negligence must occur subsequent to that point in time when the person discovered or should have discovered the plaintiff's peril. West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

last clear chance n. a rule of law in determining responsibility for damages caused by negligence, which provides that if the plaintiff (the party suing for damages) is negligent, that will not matter if the defendant (the party being sued for damages caused by his/her negligence) could have still avoided the accident by reasonable care in the final moments (no matter how slight) before the accident. The theory is that although the plaintiff may have been negligent, his/her negligence no longer was the cause of the accident because the defendant could have prevented the accident. Most commonly applied to auto accidents, a typical case of last clear chance would be when one driver drifts over the center line, and this action was noted by an on-coming driver who proceeds without taking simple evasive action, crashes into the first driver, and is thus liable for the injuries to the first driver who was over the line. In the few states which apply the strict "contributory negligence" rule which keeps a negligent plaintiff from recovering damages from a negligent defendant, "last clear chance" can save the careless plaintiff's lawsuit.

** Where the plaintiff's previous negligence has placed him or her in a position from which the person is powerless to extricate himself or herself by the exercise of any ordinary care, and the defendant detects the danger while time remains to avoid it but fails to act, the courts have held that the plaintiff can recover. There must be proof that the defendant discovered the situation, had the time to take action that would have saved the plaintiff, but failed to do what a reasonable person would have done. In the absence of any one of these elements, the courts deny recovery. If the defendant who has a duty to discover the plaintiff's peril does not do so in time to avoid injury to the plaintiff, some courts have permitted recovery under the rationale that the defendant's subsequent negligence is the proximate cause, or direct cause, of the injury, rather than the contributory negligence of the plaintiff. The defendant must have been able to have discovered the peril through appropriate vigilance so as to avoid its harmful consequences to the plaintiff. [Latin, The thing speaks for itself.] A rebuttable presumption or inference that the defendant was negligent, which arises upon proof that the instrumentality or condition causing the injury was in the defendant's exclusive control and that the accident was one that ordinarily does not occur in the absence of Negligence. Res ipsa loquitur, or res ipsa, as it is commonly called, is really a rule of evidence, not a rule of Substantive Law. Negligence is conduct that falls below the standard established by law for the protection of others against an unreasonable risk of harm. In order to prevail in a negligence action, a plaintiff must establish by a Preponderance of Evidence that the defendant's conduct was unreasonable in light of the particular situation and that such conduct caused the plaintiff's injury. The mere fact that an accident or an injury has occurred, with nothing more, is not evidence of negligence. There must be evidence that negligence caused the event. Such evidence can consist of direct testimony by eyewitnesses who observed the defendant's unreasonable conduct and its injurious result. Negligence can also be established by Circumstantial Evidence when no direct evidence exists. Circumstantial evidence is evidence of one recognized fact or set of facts from which the fact to be determined can be reasonably inferred because it is the logical conclusion that can be drawn from all the known facts. For example, skid marks at the scene of an accident are circumstantial evidence that a car was driven at an excessive speed. The reasoning process must be based upon the facts offered as evidence, together with a sufficient background of human experience, to justify the conclusion. Evidence that merely suggests the possibility of negligence is insufficient, since negligence must appear more likely than not to have occurred. This inference must cover all the necessary elements of negligence: that the defendant owed the plaintiff a duty, which the defendant violated by failing to act according to the required standard of conduct, and that such negligent conduct injured the plaintiff. Res ipsa loquitur is one form of circumstantial evidence that permits a reasonable person to surmise that the most Probable Cause of an accident was the defendant's negligence. This concept was first advanced in 1863 in a case in which a barrel of flour rolled out of a warehouse window and fell upon a

passing pedestrian. Res ipsa loquitur was the reasonable conclusion because, under the circumstances, the defendant was probably culpable since no other explanation was likely. The concept was rapidly applied to cases involving injuries to passengers caused by carriers, such as railroads, which were required to prove they had not been negligent. Res ipsa loquitur, as it is in the early 2000s applied by nearly all of the 50 states, deals with the sufficiency of circumstantial evidence and, as in some states, affects the Burden of Proof in negligence cases. Elements Three basic requirements must be satisfied before a court can submit the question of negligence to the jury under res ipsa loquitur. Inference of Negligence The plaintiff's injury must be of a type that does not ordinarily occur unless someone has been negligent. This requirement, which is the inference of negligence, allows res ipsa to be applied to a wide variety of situations, such as the falling of elevators, the presence of a dead mouse in a bottle of soda, or a streetcar careening through a restaurant. Although many of the cases involve freakish and improbable situations, ordinary events, such as where a passenger is injured when a vehicle stops abruptly, will also warrant the application of res ipsa. Commercial air travel became so safe in the late twentieth century that planes engaged in regularly scheduled commercial flights generally do not crash unless someone has been negligent. Vehicular accidents caused by a sudden loss of control, such as a car suddenly swerving off the road or a truck skidding on a slippery road and crossing into the wrong lane of traffic, justify the conclusion that such an event would not normally occur except for someone's negligence. This inference of negligence does not mean that all other possible causes of the injurious event must be eliminated. A plaintiff using res ipsa to enable her case to go to the jury must prove that the defendant's negligence is the most probable cause of her injuries. The particular nature of the defendant's negligence need not be pinpointed. For instance, where a bottle of soda explodes in a supermarket immediately after its delivery by the bottler, the injured person does not have to prove that the bottler failed to notice a defect in the bottle or that the soda was over-carbonated. It is sufficient to establish that the explosion would not have occurred unless the bottler had been negligent. Where the inference of negligence depends upon facts beyond the common knowledge of jurors, Expert Testimony is necessary to furnish this information. Such testimony is usually presented in cases of professional negligence, such as Medical Malpractice. An expert witness can testify directly in regard to the inferred fact itself, such as when the expert testifies that the plaintiff's injury would not have occurred if the doctor had not been negligent. Exclusive Control by the Defendant The plaintiff's injury or damage must have been caused by an instrumentality or condition that was within the exclusive control of the defendant. Some courts interpret this requirement to mean that exclusive control or management must have existed at the time of the injury. This interpretation has led to harsh results. In one case, a customer sat down in a chair in a store while waiting for a salesperson. The chair collapsed and the customer was injured. The court denied recovery to the customer in her negligence action against the store because it found that the chair was not within the exclusive control of the store but rather was under the exclusive control of the customer at the time of injury.

This application of the rule has been regarded as inflexible by many courts, since it severely restricts the type of case to which res ipsa can be applied. In response, many states prescribe that the negligence must occur while the defendant has control over the instrumentality. In the example of the exploding soda bottle, the negligence of the bottler occurred somewhere in the bottling process. The fact that the bottle was sitting on a supermarket shelf and was no longer in the immediate possession of the bottler does not prevent the reasonable conclusion that the injury resulted from the negligence of the bottler. The injured plaintiff must first show that the bottle was not cracked by mishandling after it left the plant of the bottler. This does not mean, however, that the plaintiff must account for every minute of the existence of the bottle from the time it left the plant. If the plaintiff can substantiate the fact of careful handling in general and the absence of unusual incidents, such as the deliberate tampering of the bottled goods by an unknown person, such facts would permit reasonable persons to conclude that the injury was more likely than not to have been caused by the defendant's negligence while he had exclusive control of the bottle. Since there must be exclusive control by the defendant, res ipsa cannot be used against multiple defendants in a negligence case where the plaintiff claims he has been injured by the negligence of another. For example, a pedestrian is injured when he is struck by a car that had just collided with another vehicle. The pedestrian institutes a negligence action against one driver and seeks to have res ipsa applied to his case. An inference of negligence does not arise from the mere fact of the collision, since neither driver is in exclusive control of the situation. If, however, one driver is cleared of fault by some specific evidence, the jury is justified in inferring that the injury was the result of the other driver's negligence. The requirement of exclusive control by the defendant is not applied in cases involving Vicarious Liability or shared responsibility for the same instrumentality or condition. In one case, a person was injured when an elevator in which she was riding fell very rapidly. She brought a negligence action against both the owner of the building and the company that manufactured the elevator and had the maintenance service contract for the building. The plaintiff relied completely on res ipsa. The jury found for the plaintiff since a falling elevator is not the type of accident that usually occurs without negligence, so that the negligence of those in control can be inferred. The service contract between the elevator company and the building owner established the fact that they exerted joint control over the elevator. The requirement of exclusive control by a defendant of the instrumentality causing injury does not mean that only a single entity has control. Where two or more defendants are acting jointly, the doctrine of res ipsa can be applied to establish their negligence. Some state courts have departed from the requirement of exclusive control and applied res ipsa loquitur against multiple defendants. In one case, while an anesthetized patient was undergoing an operation for appendicitis, he suffered a traumatic injury to his shoulder. Res ipsa was applied against all of the doctors and hospital employees connected with the operation, although not all of them were negligent. The court based its decision on the special responsibility for the plaintiff's safety undertaken by everyone concerned. Freedom from Contributory Negligence The event in question must not have been attributable to any cause for which the plaintiff is responsible. The plaintiff must not have done anything that significantly contributed to the accident that caused the injury. In one case, a water skier was injured when the propeller of the boat that had been towing him struck his arm as the boat was attempting to pick him up. He sued the driver and the owner of the boat for negligence, which could be found if res ipsa was

applied. The plaintiff attempted to dive underwater when he saw the boat approaching him, but he was unsuccessful in escaping injury. The defendants claimed that the attempted dive caused the accident and, therefore, res ipsa was inapplicable. The trial court accepted this argument, which was later rejected by the appellate court. The appellate court decided that the question of whether the attempted dive caused the accident should have been presented to the jury under res ipsa. It stated that a plaintiff may rely upon res ipsa loquitur even though he has participated in the events leading to the accident if the evidence excludes his conduct as the responsible cause. In light of the skier's testimony that he was about to be struck by the boat, as well as the testimony of other eyewitnesses, the jury could logically conclude that the attempted dive was not a cause of the accident. Accessibility of Evidence In addition to the three basic requirements, a few states apply res ipsa in negligence cases where the evidence of the facts of the event is more accessible to the defendant than to the plaintiff. In one state, for example, a plaintiff was injured when the bleacher section in which she was sitting collapsed during a basketball game under the management and supervision of the defendant high school athletic association. She sued the association for negligence under the doctrine of res ipsa. The appellate court, reviewing a verdict for the plaintiff, affirmed it because "the underlying reason for the res ipsa rule is that the chief evidence of the true cause of the injury is practically accessible to the defendant but inaccessible to the injured person." The Effect of Res Ipsa Res ipsa loquitur is usually used when there is no direct evidence of the defendant's negligence. The facts presented to the court must meet the three basic requirements. Once the court decides that the facts of a particular case warrant the application of res ipsa, it instructs the jury on the basic principles, but it is the function of the jury to decide the credibility and weight of the inference to be drawn from the known facts. The jury can conclude that the defendant was negligent, but the jury is not compelled to do so. Everything depends upon the particular facts of each case. An inference of negligence might be so clear that no reasonable person could fail to accept it. If the defendant offers no explanation, the court can direct a verdict for the plaintiff if the inference is so strong that reasonable jurors could not reach any other conclusion. Where the jury considers the question of negligence, it can decide that the facts do not logically lead to an inference of the defendant's negligence, even if the defendant did not offer any evidence in her defense. If the defendant presents evidence that makes it unlikely that she has acted negligently, the plaintiff will lose his case unless he can rebut the evidence, since such evidence destroys the inference of negligence created by res ipsa. A minority of courts hold that res ipsa creates a rebuttable presumption of negligence. Unless the defendant offers sufficient evidence to contradict it, the court must direct a verdict for the plaintiff. Some states have gone as far as to shift the burden of proof to the defendant, requiring her to introduce evidence of greater weight than that of the plaintiff.

The DOCTRINE OF PROXIMATE CAUSE is only applicable for actions of Quasi-Delict and it is not applicable to Breach of Contract***It is a device to impute liability to a person where there is no pre-existing contractual relations between him and another party. 4 TESTS TO DETERMINE THE EXISTENCE OF THE DOCTRINE OF PROXIMATE CAUSE 1) Foreseeability Test- Where the particular harm was reasonably foreseeable at the time of the defendants misconduct ,his act or omission is the legal cause thereof. 2) Natural and Probable Consequence Test- when the defendants liability is recognized only if the harm or injury is the natural and probable consequence of his own act or omission complained of. 3) Sine Qua Non Test- when the defendants conduct is the cause of the event if it was a material element or substantial factor in bringing it about 4) Cause and Conditions Test- a test where a distinction is made between the active cause of the harm or injury and the existing conditions upon which that cause operated. DOCTRINE OF COMPARATIVE NEGLIGENCE-the negligence of both the plaintiff and the defendant are compared for the purposes of reaching an equitable apportionment of their respective liabilities for the damages caused and suffered by the plaintiff. **This is the one we use in the Philippine jurisdiction not the doctrine of contributory negligence which is used in the US and other common law countries. PURE COMPARATIVE NEGLIGENCE RULE- the plaintiff can recover from the defendant regardless of the negligence of the former.(this rule is the more equitable to follow as long as the injury suffered by the plaintiff was not cause solely by his contributory negligence) ARKANSAS COMPARATIVE NEGLIGENCE RULE- the plaintiff can recover if his negligence is lesser in degree than that of the defendant. DOCTRINE OF LAST CLEAR CHANCE-Pickart vs Smith Where both parties are guilty of negligence, the negligent act of one succeeds that of the other by an appreciable interval of time, the one who has the last clear chance to avoid the impending harm and fails to do so, is chargeable with the consequences, without reference to the prior negligence of the other party. ELEMENTS: 1) Plaintiff is placed in danger by his own negligent act and he is unable to get out from such situation by any means.

2)Defendant knows that the plaintiff is in danger and knows or should have known that the plaintiff was unable to extricate himself therefrom; and 3) Defendant has the last clear chance to or opportunity to avoid the accident through the exercise of ordinary care but failed to do so; and the accident occurred as a proximate result of such failure.

Not Applicable in the following: 1) Collapse of building or structure 2)When the claim or demand of the injured passenger is the enforcement of the carriers contractual obligation to bring him safety to his destination. 3) When the injury or accident cannot be avoided by application of all means at hand after peril has been discovered. DOCTRINE OF RES IPSA LOQUITOR-thing or transaction speaks for itself ELEMENTS: 1) the accident was of such character as to warrant an inference that it would not have happened except for defendants negligence. 2)the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of. 3)the accident must not have been due to any voluntary action or contribution on the part of the person injured. NEGLIGENCE is presumed by operation of law in this doctrine-RES IPSA LOQUITOR- However, it is rebuttable and not conclusive. PRINCIPAL DEFENSES WHICH MAY BE AVAILED BY THE DEFENDANT IN ACTIONS BASED ON NEGLIGENCE; 1) EMERGENCY RULE: Under this doctrine, one who suddenly finds himself in a place of danger and is required to act without time to consider the beast means that may be adopted to avoid the impending danger, is not guilty of negligence. 2) ASSUMPTION OF RISK-this is voluntary assumption of a risk of harm arising from the negligent conduct of the defendant. It presupposes an intentional exposure to a known peril. **Not applicable in cases covered by the WORKMENS COMPENSATION ACT (LABOR CODE) 3)CONTRIBUTORY NEGLIGENCE when the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover damages.(Art. 1279NCC)

4) VOLENTI NON FIT INJURIA-to which a person assents is not esteemed in law as injury Stated otherwise: one is not legally injured if he has consented to the act complained of or was willing that it shall occur. DOCTRINE OF ATTRACTIVE NUISANCE- under this doctrine, one who maintains in his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who injured thereby, even if the child is technically a trespasser in the premises. ** Not applicable to bodies of water , artificial or natural , ex: ponds, swimming pools, reservoirs, streams, canals, dams, ditches, culverts, drains, cesspools, or sewer pools Reason**- nature has created streams, lakes, and pools attract children. Lurking in their waters is always the danger of drowning. Against the danger, children are early instructed so that they sufficiently presumed to know the danger. PRINCIPLE OF VICARIUOS LIABILITY- the liability for the acts of others enumerated under Art. 2180 One is not only liable for his own quasi-delictual acts but also for those persons for whom he is responsible under the law.