(DAY 10) NUISANCE : TORT ARISING FROM PROPERTY USE Art. 694.

A nuisance is any act, omission, establishment, business, condition of property, or anything else which: (1) Injures or endangers the health or safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) Hinders or impairs the use of property. Art. 697. The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence. Art. 699. The remedies against a public nuisance are: (1) A prosecution under the Penal Code or any local ordinance: or (2) A civil action; or (3) Abatement, without judicial proceedings. Art. 703. A private person may file an action on account of a public nuisance, if it is specially injurious to himself. Art. 704. Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. But it is necessary: (1) That demand be first made upon the owner or possessor of the property to abate the nuisance; (2) That such demand has been rejected;
(3) That the abatement be approved by the district health officer and executed with the assistance of the local police;

(4) That the value of the destruction does not exceed three thousand pesos. Art. 705. The remedies against a private nuisance are: (1) A civil action; or (2) Abatement, without judicial proceedings. Art. 706. Any person injured by a private nuisance may abate it by removing, or if necessary, by destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury. However, it is indispensable that the procedure for extrajudicial abatement of a public nuisance by a private person be followed. Art. 707. A private person or a public official extrajudicially abating a nuisance shall be liable for damages: (1) If he causes unnecessary injury; or (2) If an alleged nuisance is later declared by the courts to be not a real nuisance. CONCEPT Derived from the French word nuire, which means to injure, hurt or harm. Literally: it means annoyance, or anything that works hurt, inconvenience, or injury. Nuisance doctrine operates as a restriction upon the right of the owner of property to make such use of it as he pleases. NUISANCE is applied to that class of wrongs which arises from the unreasonable, unwarrantable, or unlawful use by a person of his own property,

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and which produces such material annoyance, inconvenience, discomfort, or hurt, that the law will presume a consequent damage. Anything that works an injury, harm or prejudice to an individual or the public is a nuisance. It embraces both intentional harms and those caused by negligence or recklessness. Law of nuisance is a subcategory of tort law in that the gravamen of the complaint in nuisance is the allegation of injury to person or property . Injury need not be physical, and can include injury to rights or property enjoyment. To be liable for a nuisance, there must be resulting injury to another in the enjoyment of his legal rights. NUISANCE vs. TRESSPASS o A nuisance consists of a use of ones own property in such a manner as to cause injury to the property or other right or interest of another, and generally results from the commission of an act beyond the limits of the property affected, A trespass is a direct infringement of anothers right of property. An encroachment upon the space about anothers land but not upon the land itself is a nuisance and not a trespass. (Conestee Mills v. Greenville)

In trespass, the injury is direct and immediate; in nuisance, it is consequential.

NUISANCE vs. NEGLIGENCE (1) As to Liability: there must be some breach of duty. a. liability for negligence: based on a want of care; b. liability for nuisance: a person who creates or maintains nuisance is liable for the resulting injury to others regardless of the degree of care to avoid the injury. (2) As to Violation: a. Nuisance: violation of an absolute duty, the doing of an act which is wrongful in itself; b. Negligence: violation of a relative duty, the failure to use the degree of care required under particular circumstances. (3) As to Consequence: the damage is the necessary consequence of what the defendant is doing, or is incident to the business itself a. Nuisance: applies b. Negligence: does not apply

It has been held that where the acts or omissions constituting negligence are the identical acts which, it is asserted, give rise to a cause of action for nuisance , the rules applicable to negligence will be applied.
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Ex. The building of a structure may be negligence and at the same a nuisance rendering the one creating it liable without proof of negligence. Where however, the liability of the lessor of a land or building in a condition dangerous to the health or safety of the public depends upon whether he knew, or, with the exercise of due care, ought to have

known, of its dangerous condition, an action by one injured as a result thereof may take the form of one for nuisance or one for negligence. o There may be situations where what was lawful in its origin may be turned into a nuisance by negligence in maintenance . The coal hole, built under a license, may involve a liability for nuisance if there is negligence in covering it. The tumbledown house abutting on a highway is transformed into an unlawful structure if its ruinous condition is a menace to the traveler.

NUISANCE based on their nature: PER SE & PER ACCIDENS NUISANCE PER SE: an act, occupation, or structure which is unquestionably a nuisance at all times and under any circumstances, regardless of location or surroundings . A nuisance because of its inherent qualities, productive of injury or dangerous to life or property without regard to circumstance. A house of prostitution is a nuisance per se aside from being a public nuisance; gambling houses. Houses constructed without governmental authority on public streets and river beds for they obstruct at all times the free use by the public of said places. As such, they may be summarily removed without judicial proceedings. All squatters on government resettlement projects, they can be abated or ejected without judicial proceedings. (Mendoza vs. National Housing Authority , 1982)

NUISANCE PER ACCIDENS: an act, occupation, or structure, not a nuisance per se, but which may become a nuisance by reason of circumstances, location, or surroundings. Raising and breeding pigs in a house within city limits is a nuisance per accidens.

The difference between nuisance per se and nuisance per accidens lies in the proof, not in the remedy. The responsibility for a nuisance for either sort is the same. PER SE PER ACCIDENS whether it is a nuisance or not is generally a question of fact the thing becomes a nuisance as depends upon its location and a matter of law surroundings, the manner of its conduct or other circumstances existence may be proved proof of the act and its without a showing of specific damages consequences is necessary. the right to relief is established by averment and proof of the mere act affects the immediate safety of even the municipal authorities, persons and property would not have the right to compel the abatement of a may be summarily abated under particular thing or act as a the undefined law of necessity nuisance without reasonable notice to the person alleged to be maintaining or doing the same at the time and place of hearing before a tribunal authorized to decide whether such a thing or act does in law constitute a nuisance (Monteverde vs. Generoso,

EXISTENC E ABATEME NT

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1928) o NUISANCE according to the extent or scope of their injurious effects : PUBLIC & PRIVATE PUBLIC NUISANCE: the doing of or the failure to do something that injuriously affects safety, health, or morals of the public, or works some substantial annoyance, inconvenience, or injury to the public. It is a nuisance which causes hurt, inconvenience, or damage to the public generally, or such a part of the public as necessarily comes in contact with it in the exercise of a public or common right. It is a condition of things which is prejudicial to the health, comfort, safety, property, sense of decency, or morals of the citizens at large, resulting either from an act not warranted by law, or neglect of a duty imposed by law.

PRIVATE NUISANCE: one which violates only private rights and produces damage to but one or a few persons, and cannot be said to be public. It has been said to exist where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land, and where an individual wrong arising from an unreasonable, unwarrantable, or unlawful use of ones property produces such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage. PUBLIC affects the public at large or such of them as may come in contact with it Public nuisances are indictable, the complainant need not have property or use interest in any property affected by the defendants conduct. PRIVATE affects the individual or a limited number of individuals only. private nuisance are actionable, either for their abatement or for damages, or both. Injunctive relief may be granted against a private nuisance. The complainant seeks to protect his own, current interest in the undisturbed enjoyment of or benefit from property. The plaintiff need not own the property he need only be a lawful occupant, or the holder of one or more other use rights.

SCOPE

REMEDY

TEST OF A PUBLIC NUISANCE

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The distinction between a public nuisance and a private nuisance lie in the extent or scope of its injurious effect. The test of a public nuisance is the possibility of injury or annoyance not to the public, but to all who come within its sphere.

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there is a tendency to the annoyance of the public, by an invasion of its rights which all are entitled to exercise if they see fit. that acts or conditions may be beneficial to the public in some degree will not prevent them from being a nuisance, if their effects are such as to fall within the definition of a nuisance. Example: A private basketball court built on government land devoted to public use, constitutes a public nuisance as well as nuisance per se and, therefore, can be summarily abated. The fact that it is also used as a venue for public meetings does not make it less a nuisance.

Public nuisance always arise out of unlawful acts, and an act cannot be a nuisance if it is lawful, or is authorized by a valid statute or ordinance, or is imperatively demanded by public convenience.

MIXED NUISANCES A nuisance may be both public and private in character; it may be a public nuisance because it violates public rights to the injury of many persons, and it may also be private in character in that it produces special injury to private rights to any extent beyond the injury to the public. Example: o A house abutting on a street railway track is a private nuisance to the railway company and a public nuisance because it obstructs the street. o Raising and breeding animals (pigs, goats and sheep) for commercial purposes in a vicinity that is fast becoming a fashionable residential district and where it is shown that the place where the animals are kept are found to be unsanitary on account of the offensive odors, pernicious to health, coming from manure scattered therein, stagnant water, etc. constitutes both public and private nuisance.

The keeping or storage of gasoline may constitute a nuisance, either private or public. Whether or not it becomes a nuisance depends upon the location, the quantity, and other surrounding circumstances. While it would not necessarily depend upon the degree of care used in the storage, the manner in which the tanks are constructed and operated may be considered. (Javier v. Ozaeta)

NOISE AS A NUISANCE GENERALLY: everyone is bound to bear the habitual or customary inconveniences that result from the proximity of others, and so long as this level is not surpassed, he may not complain against them. o BUT: if the prejudice exceeds the inconveniences that such proximity habitually brings, the neighbor who causes such disturbance is held responsible for the resulting damage, being guilty of causing nuisance.

WHEN ACTIONABLE o A noise may constitute an actionable nuisance; it must be a noise which affects injuriously the health or comfort of ordinary people in the vicinity to an unreasonable extent. Injury to a particular person in a peculiar position or of specially sensitive characteristics will not render the noise an actionable nuisance.
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TEST:

Whether rights of property, health, or comfort are so injuriously affected by the noise in question that the sufferer is subjected to a loss which goes beyond the reasonable limit imposed upon him by the condition of living, or of holding property, in a particular locality in fact devoted to uses which involve the emission of noise although ordinary care is taken to confine it within reasonably bounds.

ATTRACTIVE NUISANCE GENERAL RULE that when people come to the lands or premises of others for their own purposes, without right or invitation, they must take the lands or premises as they see them. If they are exposed to injury from unseen dangers, the responsibility therefor is upon themselves. (38 Am. Jur. 2d 804.) EXCEPTION An exception to the rule absolving from liability owners or occupants of premises, in reference to injuries sustained by persons trespassing upon their property, is the so-called attractive nuisance doctrine. Thus, 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. ( Hidalgo Enterprises, Inc. v. Balandan)

BASIS OF LIABILITY. found in the general rules which determine the duty of an owner or occupant to trespassers and the degree of care which must be exercised toward children of tender years. Presence of children to be anticipated o GENERAL RULE: an owner or occupant must exercise ordinary care to prevent an injury to a trespasser whose presence upon the premises is reasonably to be anticipated. One who maintains upon his premises an instrumentality or conditions attractive to children is bound to anticipate the presence of children who will be allured to and upon the premises by the attraction, and to exercise ordinary care for the safety of such children. The use of the expression attractive nuisance is to designate a class of cases within the general rule that one is liable for injury resulting to another from failure to exercise the degree of care commensurate with the circumstances.

Extra precautions to be taken for their safety. o the tender age of the child requires the owner to take precautions for safety that he would not be bound to take for the protection of an adult.

Children acting upon their instincts and impulses to be expected o Children, wherever they go, must be expected to act upon childrens instincts and impulses, and others, who are chargeable with a duty of care and caution toward them, must calculate accordingly. If they leave exposed to the observation of children anything tempting to them which they, in their immature judgment, might naturally suppose

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they were at liberty to handle or play with, it should be expected that such liberty will be taken. APPLICATION TO BODIES OF WATER generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location. Thus, a swimming pool or pond or reservoir of water is not considered an attractive nuisance. Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger, children are earlier instructed so that they are sufficiently presumed to know the danger; and if the owner of private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, he is not liable because of having created an attractive nuisance. (Hidalgo Enterprises, Inc. v. Balandan)

DEGREE OF CARE REQUIRED. No one is an insurer of the safety of children merely because he is the owner of places or appliances that may appeal to their youthful fences. Ordinary or reasonable care o A landowner has a right to maintain a dangerous instrumentality on his premises that are attractive to children, provided he exercises ordinary care or reasonable care to prevent them from being injured while playing therewith. take such measures or precautions: giving warning of danger, erecting guards, providing fences or barricades, installing safety devices, or furnishing other means, as are reasonably sufficient to prevent trespassing by children It is the failure to take such precautions which authorizes a recovery under the doctrine of attractive nuisance.

Remote or improbable injuries o An owner of land is not required to provide against remote or improbable injuries to children who came upon the premises, but only against such injuries as can be reasonably anticipated to occur from the object or instrumentality involved. Any requirement must not be so onerous as to make ownership or possession of property burdensome instead of being profitable or enjoyable.

Without serious inconvenience and great expense to owner o There is no duty to take precautions where to do so would be impracticable, unreasonable, or intolerable.
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The duty to safeguard the dangerous attraction is subject to the qualification that it can be done without serious inconvenience and great expense to the owner. Example: one of the reasons given for the general rule that a fire escape is not an attractive nuisance is that it is impracticable to construct fire escapes so that they will serve usefully for the purpose for which they are intended and yet be inaccessible to adventurous children.

ANTICIPATION OF INJURED CHILDS PRESENCE The defendant is not liable unless he knew, or reasonably ought to have known, that the structure or instrumentality was alluring to children and endangered them. Ground for anticipating childs presence o One of the essential conditions of liability under the doctrine of attractive nuisance is that there must have been ground for anticipating the presence of the injured child, since, unless the presence of the injured child is reasonably to be anticipated, the duty of taking precautions for his safety does not arise. The owners of land are not required in using it for legitimate purposes to guard against every possible dangers to children. To children whose presence upon the premises cannot be reasonably anticipated, they owe no duty to keep their land free from dangerous conditions. The owners knowledge of the childs peril may appear from the nature and kind of attraction or from the location and accessibility of the attraction.

Reason For Childs Presence o The reason for an injured childs presence upon the premises is important in determining whether the proprietor should have anticipated his presence. It may be shown that the child was upon the premises for another reason, as where the child was brought upon the premises by his parent when the latter entered on a personal errand; or where the child was present by invitation of one not authorized by the owner or occupant to act in this respect; or where he was merely using the premises for a shortcut, or as a vantage point for viewing an independent attraction upon other premises. Childs presence due to the attraction It must be shown that the presence of the child was due to the attraction. Where a child is in a place where he has a right to be, there is no reason for anticipating its presence.

Dangers to which doctrine applicable/not applicable . o the danger to the child be caused by the attraction itself, or by something with which the attraction brings the child in contact.
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Applicable for the protection of even a meddling child; but it does not protect a child against the owner of the premises if the danger was not an incident to the place, but was created by the child himself. The character of the danger, as open and obvious, or hidden and latent, is an important consideration. The doctrine is limited in its application to cases where the danger is latent, and affords no basis for a recovery where the injury complained of was produced by a peril of an obvious or patent character. A danger which is not only obvious but natural, considering the instrumentality from which it arises, is not within the meaning of the attractive nuisance doctrine, for the reason that an owner or occupant is entitled to assume that the parents or guardian of a child will have warned him to avoid such a peril. Pits and excavations on land embody no dangers that are not readily apparent to everyone, even to very young children. For this reason, the proprietor is under no obligation, as a rule, to fence or otherwise guard such places, and he will not be liable for injuries to children who may have fallen therein.

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Nor is the landowner liable for injuries sustained by earth falling into excavations as a result of the embankment being undermined by children. Dangers of an ordinary character as those from fire and steam, may, however, be so concealed as to authorize a recovery. The age of the injured child is material consideration in determining whether the peril was one which he should have recognized. Again, a childs knowledge of the danger may be inferred from the fact that he has been warned thereof.

ABATEMENT OF NUISANCE AND RECOVERY OF DAMAGES. The action to abate and the action to recover damages are distinct remedies either or both of which the plaintiff may pursue at his election. The abatement of a nuisance may have taken place after injury or damage has already been caused. The injured person may still recover damages resulting from or growing out of the nuisance which has been abated. The rule is just and serves to discourage and punish anyone who causes a nuisance. The owner of property abated as a nuisance is not entitled to compensation unless he can show that the abatement is unjustified.

ACTION FOR DAMAGES AGAINST A NUISANCE. The action for damages permits the plaintiff to recover for all damages caused up to the time of the suit if the nuisance was such that the defendant may be expected to abate it. If the defendant fails to abate the nuisance, its continuance constitutes a new nuisance and gives rise to another action for damages, as where the defendant repeatedly floods the plaintiffs lands. But if the nuisance cannot be abated or is such that the court will not enjoin its continuance, all damages must be obtained in one action. The right to successive actions serves the double purpose of compensating the plaintiff and inducing the defendant to abate the nuisance. In addition, it prevents one person from practically compelling another to sell a legal right.

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LIABILITY FOR DAMAGES IN CASE OF EXTRA- JUDICIAL ABATEMENT OF NUISANCE. Article 707 provides for two grounds to hold a private person or public official extrajudicially abating a nuisance liable for damages. It serves the dual purpose of providing a sort of deterrent against the improvident or unreasonable resort to the remedy by unscrupulous parties AND at the same time affords the victim a civil remedy to recover damages without prejudice to such other remedies granted by law.

STRICT LIABILITY OF EMPLOYER TO PAY FOR DEATH OR INJURIES TO EMPLOYEES Art. 1711. Owners of enterprises and other employers are obliged to pay compensation for the death of or injuries to their laborers, workmen, mechanics or other employees , even though the event may have been purely accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in the course of the employment . The employer is also liable for compensation if the employee contracts any illness or disease caused by such employment or as the result of the nature of the employment . 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. o o The language of the provision indicates that the same is strict liability because liability exists even if the cause is purely accidental. Note: if the death or injury is due to the negligence of a fellow-worker, the latter and the employer shall be solidarily liable for compensation. If a fellow-workers 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 plaintiffs fellow-worker (1217, NCC)

OWNER OF ANIMALS Art. 2183. The possessor of an animal or whoever may make use of the same is responsible for the damage which it may cause, although it may escape or be lost. This responsibility shall cease only in case the damage should come from force majeure or from the fault of the person who has suffered damage. (1905) o The language of the provision reveals an evident intent to make the possessor or whoever makes use of the animal, liable independent of fault . EXCEPTION: when the damage was caused by force majeure or by the person who suffered the damage. (Defiras v. Escao). That the owner or posssesor of the animal is still liable even if damage was caused by the animal through the fault of third persons. 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. The Civil Code provision is applicable whether the animal is domestic, domesticated or wild. (Vestil vs. IAC, 1989).

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PROPRIETOR OF BUILDING/THING Art. 2191. Proprietors shall also be responsible for damages caused: (1) By the explosion of machinery which has not been taken care of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place; (2) By excessive smoke, which may be harmful to persons or property; (3) By the falling of trees situated at or near highways or lanes, if not caused by force majeure; (4) By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place. (1908) Art. 2192. If damage referred to in the two preceding articles should be the result of any defect in the construction mentioned in Article 1723, the third person suffering damages may proceed only against the engineer or architect or contractor in accordance with said article, within the period therein fixed. (1909) Art. 2193. 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. (1910) o 3rd persons who suffered damages may proceed only against the engineer or architect or contractor if the damage referred to in Articles 2190 and 2191 should be the result of any defect in construction. Nevertheless, even in the absence of the above-quoted provisions, actions for damages in the situations specified thereunder can still be maintained under Article 2176 because any damage may be considered as damage resulting from the proprietors 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.

2nd paragraph of Article 2191: SC considered the excessive smoke a nuisance that might bring about depreciation in the value of adjoining properties. However, the Court ruled that there is no certain pecuniary standard by which such damage can be measured, and in that sense the threatened injury is irreparable and may appropriately be restrained by injunction (Ollendorf v. Abrahamson). The fact that the property is leased or in usufruct will not exempt the owner from liability for his duty to make necessary repairs remains although the property is legally in the possession and control of another. The lessee or the usufructuary is obliged to notify or advise the owner of the need for urgent or extraordinary repairs. (Arts. 593, 1663.) The failure of the lessee or usufructuary to give this notice will entitle the owner to reimbursement, for the damages he may have been required to pay third parties injured by the collapse of the property.

PRODUCT & SERVICE LIABILITY Art. 2187. 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 between them and the consumers. (n) o PRODUCT LIABILITY LAW

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governs the liability of manufacturers and sellers for damages resulting from defective products. Liability for defective products may be based on fraud, warranty, negligence, or strict liability. (Coca-Cola Bottlers Philippines vs. CA, 1993). Consumer Act of the Philippines - law that is meant to protect the consumers by providing for certain safeguards when they purchase or use consumer products. The policy statement stated in Art. 2 of the law reveals the general plan implemented in its specific provisions

Declaration of Basic Policy. It is the policy of the State to protect the interests of the consumer, promote his general welfare and to establish standards of conduct for business and industry. Towards this end, the State shall implement measures to achieve the following objectives: a) protection against hazards to health and safety; b) protection against deceptive, unfair and unconscionable sales acts and practices; c) provision of information and education to facilitate sound choice and the proper exercise of rights by the consumer; d) provision of adequate rights and means of redress; and e) involvement of consumer representatives in the formulation of social and economic policies. Privity of contract is not required under Article 2187 because it expressly allows recovery although no contractual relation exists. shall indicates that the liability of the manufacturer and processor is strict. Judge Sanco explained that: That Article 2187 is included in Chapter on Quasidelicts is of no moment because it does not preclude an action based on negligence for the same act of using noxious or harmful substance in the manufacturer or processing of the foodstuffs, drinks, toilet articles or similar goods which caused the death or injury complained of, if the injured party opts to recover on that theory. And even under that theory it seems obvious that proof of negligence is likewise unnecessary because it is subsumed from the mere allegation and proof of the essential facts constituting the cause of action under this article. In this respect strict liability in tort is indistinguishable from liability for quasi-delict. The distinction lies in the kind of recoverable damages and defenses available under each cause of action which will be discussed separately.

RE CONSUMER ACT vis--vis STRICT LIABILITY The problem that is encountered in justifying strict liabilityunder Article 2187 of the Civil Code is not present in the strict liability provisions of the Consumer Act because the language of the applicable provision is clear and unmistakable . Article 97 of the statute expressly provides for liability for defective products independently of fault. The provision is broad enough to cover cases governed by Article 2187 of the Civil Code. Art. 97. Liability for the Defective Products. Any Filipino or foreign manufacturer, producer, and any importer, shall be liable for redress, independently of fault, for damages caused to consumers by defects resulting from design, manufacture, construction, assembly and erection, formulas and handling and making up, presentation or packing of their products, as well as for the insufficient or inadequate information on the use and hazards thereof. A product is defective when it does not offer the safety rightfully expected of it, taking relevant circumstances into consideration, including but not limited to:

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a) presentation of product; b) use and hazards reasonably expected of it; c) the time it was put into circulation. A product is not considered defective because another better quality product has been placed in the market. The manufacturer, builder, producer or importer shall not be held liable when it evidences: a) that it did not place the product on the market; b) that although it did place the product on the market such product has no defect; Strict liability even extends to services under Article 99 of the Consumer Act which imposes liability for defective service independently of fault. Service under Article 99 means, with respect to repair and service firms, services supplied in connection with a contact for construction, maintenance, repair, processing, treatment or cleaning of goods or of fixtures on land, or distribution of goods, or transportation of goods..

PERSONS LIABLE Imposed on the manufacturer. any person who manufactures, assembles or processes consumer products, except that if the goods are manufactured, assembled or processed for another person who attaches his own brand name to the consumer products, the latter shall be deemed the manufacturer. In case of IMPORTED PRODUCTS, the manufacturers representatives or, in his absence, the importer, shall be deemed the manufacturer. o Thus, a supermarket that sells certain products using its own trademark, is considered the manufacturer even if, in fact, it was produced by another person or entity.

Tradesman (Article 98, Consumer Act) Ordinarily is not liable for damages caused by defective products under the Consumer Act. Liable only when: o o o it is not possible to identify the manufacturer, builder, producer or importer; the product is supplied, without clear identification of the manufacturer, producer, builder or importer; and he does not adequately preserve perishable goods.. the party making payment to the damaged party may exercise the right to recover a part of the whole of the payment made against the other responsible parties, in accordance with their part or responsibility in the cause of the damage effected.

It shall include a supplier or distributor if: o the seller is a subsidiary or affiliate of the supplier or distributor;

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Seller a person engaged in the business of selling consumer products directly to consumers.

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the seller interchanges personnel or maintains common or overlapping officers or directors with the supplier or distributor; or the supplier or distributor provides or exercises supervision, direction or control over the selling practices of the seller. (Article 4[bn]). On the other hand, a distributor and a supplier are defined as follows:

REASONS WHY LIABILITY IS IMPOSED ON MANUFACTURERS 1. The consumer finds it too difficult to prove negligence against the manufacturer. 2. Strict liability provides an effective and necessary incentive to manufacturers to make their products as safe as possible. 3. Res ipsa loquitur is in fact applied, in some case, to impose liability upon producers who have not in fact been negligent; therefore negligence should be dispensed with. 4. Reputable manufacturers do in fact stand behind their products, replacing and repairing those which prove to be defective; and many of them issue agreements to do so. Therefore, all should be responsible when injury results from a normal use of a product. 5. The manufacturer is in a better position to protect against harm, by insuring against liability for it, and, by adding the costs of the insurance to the price of the product, to pass the loss on to the general public.

MEANING OF DEFECTIVE PRODUCT Article 97 of the Consumer Act contemplates (4) kinds of defects in products: 1. Manufacturing Defect defects resulting from manufacture, construction, assembly and erection. 2. Design Defect defects resulting from design and formulas. 3. Presentation Defect defects resulting from handling, making up, presentation or packing of the products. 4. Absence of Appropriate Warning defect resulting from the insufficient or inadequate information on the use and hazards of the products.

LACK OF WARNING: DUTY TO WARN Art. 74 enforce accurate products of the Consumer Act expressly states as a policy that the State shall compulsory labeling, and fair packaging to enable the consumer to obtain information as to the nature, quality and quantity of the contents of consumer and to facilitate his comparison of the value of such products .

The obligation is primarily imposed on the manufacturer EXCEPTION: the wholesaler or retailer may have such obligation if they: (Article 76). o o o are engaged in the packaging or labeling of such products; prescribe or specify by any means the manner in which such products are packaged or labeled; having knowledge, refuse to disclose the source of the mislabeled or mispackaged products.

Minimum labeling requirements: whether it is flammable or inflammable; directions for use, if necessary; warning of toxicity; wattage, voltage or amperes; or process of manufacture used if necessary.

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Any word, statement or other information required shall appear on the label or labeling with such conspicuousness as compared with other words, statements, designs or devices therein, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase or use. o PROOF OF DEFECT Frequently the product in dispute will have been destroyed, beyond any possibility of analysis, or be so complex that a plaintiff would have a greater difficulty in determining the presence of defect than would the manufacturer. In most cases, proof of the defect must necessarily be by circumstantial evidence and inference as well as opinion of experts. No general rule can adequately apply to the wide range of such cases, each involving a different mixture of fact and inference, but fundamental to any case is that some defect must be proved. Strictly speaking, res ipsa loquitur has no application to a strict liability case because determination of negligence is not material. However, the fact that the product went wrong may, in proper cases, give rise to a permissible inference that it was defective and that the defect existed when it left the hands of the defendant.

DEFENSES Article 97: provides that the manufacturer, builder, producer or importer shall not be held liable when it evidences: 1. that it did not place the product on the market; 2. that although it did place the product on the market such product has no defect; 3. that the consumer or a third party is solely at fault. Article 99 provides that the supplier of the services shall not be held liable when it is proven: 1. that there is no defect in the service rendered; 2. that the consumer or third party is solely at fault.

Torts | Day 10 | 1