LAW 104: TORTS AND DAMAGES

First Semester, AY 2016-2017

MIDTERM ASSESSMENT
COVER SHEET
ESPINO, YZABEL RENEE R.
2011-00682
WORD COUNT: 3735
This Work is substantially my own, and to the extent that any part of this Work is not my own I have
indicated that it is not my own by acknowledging the source of that part or those parts of the Work. By
submitting this Work, I am affirming the above declaration.

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TOPIC: Assumption of risk
Assumption of risk is mentioned under Article 1174 of the Civil Code. The article provides the
exceptions to the general rule that no person shall be responsible for non-performance of the obligation
due to fortuitous events. The exceptions provide that a person remains responsible for events which could
not be foreseen, or which, though foreseen, were inevitable. Thus, when the nature of the obligation
requires the assumption of risk, the risk of loss or damage is an essential element in the obligation 1. The
consequences and damages resulting from the assumption of risk must be borne by the person who
assumes the risk and no relief can be demanded from the other party.
Pantaleon vs. American Express International 2 significantly cites the current jurisprudence in the
course outline on the subject matter. The Court held that when one assumes the risk, then he must bear
the consequences of his actions even if they are just a result from another partys actions. In this case,
Polo Pantaleon went on a guided European tour with his family. When they were in Amsterdam, their tour
group went to Coster Diamond House in the morning of October 26, 1991. Because they were late in
arriving in Amsterdam, they missed the scheduled city tour the day before, so the tour group was
constricted to spend only until 9:30 a.m. in Coster. Mrs. Pantaleon decided to purchase diamond pieces
worth US $13,826 in Costers shop. To pay for the diamonds, Polo Pantaleon presented his American
Express (AMEX) credit card at 9:15 a.m. and his card got swiped in the credit card terminal. However,
AMEX didnt immediately approve of the purchase, so they had to wait. At around 9:40 a.m., Mr.
Pantaleon asked the store clerk to cancel the sale, but the store manager convinced him to wait a few
more minutes. Then, AMEX finally responded by asking Pantaleon to give the names of his Philippine
depositary banks.
At 10 a.m., 30 minutes after the time set by the tour group by which they had to leave Coster for
the city tour, AMEX still had not approved of the sale. Subsequently, Coster released the purchased items
without AMEX approval to Pantaleon at around 10:05 a.m. When they finally boarded the tour bus, the
Pantaleons offered their apologies, but their travel companions were visibly irritated by their tardiness and
they were met with stony silence. The situation got worse when the tour guide announced the cancellation
of the city tour due to lack of time because the tour group had to be in Belgium to catch a ferry to London
by 3 p.m.
Pantaleon had to take a tranquilizer to calm his nerves while Mrs. Pantaleon ended up weeping.
The transaction was eventually approved at 10:19 a.m., 78 minutes after the purchase was electronically

1 IV H. De Leon, The Law on Obligations and Contracts 71 (2003)

2 629 SCRA 276, August 25, 2010

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transmitted from Coster to AMEX Amsterdam office. After the tour, the Pantaleon family went to the US.
Other than two other instances wherein AMEX belatedly approved purchases made by Pantaleon, he was
able to use his card without much hassle.
Upon returning to Manila and due to the inconvenience, humiliation, and embarrassment that
AMEX caused to his family, Pantaleon instituted an action for damages because AMEX refused to
apologize for belatedly authorizing the said credit transactions. AMEX defense was that Pantaleons
purchase at Coster was an unusual purchase from the pattern established, thus they had to review his
record to ensure that they werent fraudulent transactions.
After initially finding3 that AMEX was liable for damages for breaching its contract when it delayed
in taking action on the purchases of Pantaleon, the Court subsequently reversed its decision upon a
motion for reconsideration filed by AMEX. In the motion for reconsideration, the Court applied the doctrine
of volenti non fit injuria (to which a person assents is not esteemed in law as injury). A person who
knowingly and voluntarily exposes himself to danger cannot claim for damages for the resulting injury 4.
The Court discussed this doctrine in the case of Nikko Hotel vs. Reyes 5, wherein it explained that a selfinflicted injury or to the consent to injury which precludes the recovery of damages by one who has
knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so 6. The Court
affirmed that this was a case of volenti non fit injuria and held that Pantaleon may not claim damages
because when he decided to continue with the purchase and wait for AMEX to accept the transaction, he
knew that the city tour of Amsterdam would be delayed and that his co-tourists would be annoyed. These
were foreseeable consequence of his actions.
Pantaleon took assumed the risk of being the brunt of the ire of the rest of the tour group by not
choosing to cancel the sale, knowing that there was a bus full of people waiting for them, so that they
could push through with the city tour of Amsterdam. Had he cancelled the sale before 9:30 a.m., then
there wouldnt be any damage to Pantaleon and his family. The damages he experienced were the
consequences of the risks he took. Moreover, the Court found that there wasnt any violation of any legal
duty, thus the cause of action in this case is a matter of damnum absque injuria or damages with legal
wrong or injury.

3 Pantaleon vs. American Express International, 587 SCRA 551, May 8, 2009
4 Nikko Hotel Manila Garden vs. Reyes, 452 SCRA 532, February 28, 2005
5 Supra at note 4
6 Supra at note 4

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The case of Achevara vs. Ramos7 created a new doctrine on the assumption of risk. This case
discussed that when a car driver assumes the risk of driving a defective vehicle, the driver is barred from
recovering damages from an accident that is caused by his own negligence. He must bear the
consequences of the risk he took when he decided to drive a defective vehicle. Specifically, this case
involved an accident between an owner-type jeep driven by Benigno Valdez and a passenger-type jeep
owned and driven by Arnulfo Ramos.
According to the respondents, Valdez was allegedly driving the jeep in a reckless and negligent
manner on the national highway in Ilocos Sur. He was driving his jeep at about 70 km/h when he overtook
a motorcycle on his lane, encroaching on the other lane where Ramos was and thus, bumping into the
oncoming owner-type jeep driven by the latter. Ramos died from his injuries, so his wife, Elvira Ramos
sued Crescencia Achevera, as the operator of the jeep, for damages arising from the incident.
On the other hand, Achevera and Valdez asserted that it was Ramos who was driving negligently
because the latter was using a motor vehicle that had a mechanical defect. One of their witnesses
testified that the owner-type jeep had a mechanical defect that caused it to wiggle when one would try to
increase its speed. The witness stated that a day before the accident happened, Ramos with a group of
people and their barangay captain, Victorino Gacusan, rode the jeep and experienced how it would wiggle
if one would increase its speed. The witness said that he heard Gacusan tell Ramos to bring the ownertype jeep to the auto shop to have the defect repaired.
Another witness of Achevera testified that on the day of the accident, Valdez didnt try to overtake
the motorcycle. The accident happened because owner-type jeep driven by Ramos was zig-zagging on
the road because its front wheels began to wiggle when he didnt slow down.
Lastly, Valdez testified that the right front wheel of the jeep driven by Ramos allegedly got
detached causing it to bump his vehicle even though he swerved to avoid a collision.
The Trial Court found that Valdez didnt encroach on Ramos lane to allegedly overtake a
motorcycle. In fact, the accident took place on the lane of Valdez and that it was Ramos who encroached
the formers lane. Although Valdez swerved his jeep to avoid Ramos, it was still hit by the latter. Despite
its findings, the Trial Court held that Achevera is vicariously responsible for the accident after applying the
doctrine of last clear chance because Ramos was only guilty of contributory negligence. Valdez had the
last opportunity to avoid the accident by parking his car instead of continuing to drive when he saw
Ramos vehicle was running in a zig-zag manner. He shouldve foreseen the danger upon seeing Ramos
on the road. His omission in using reasonable precaution constituted a breach of legal duty that rendered

7 601 SCRA 270, September 29, 2009

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him and Achevera, as the owner of the jeep, responsible for damages. The Court of Appeals affirmed the
decision of the trial court.
Achevera filed an appeal to the Supreme Court, arguing that by driving a defective vehicle and
failing to have it repaired before taking it for a drive, Ramos negligently took the risk that an accident may
be caused by such defect. Ramos negligence was the immediate and proximate cause of the accident
and wasnt merely contributory because he fully knew and could foresee that the defective jeep he drove
could cause an accident. He assumed the risk of causing injuries to himself and to others by knowingly
driving a defective jeep, thus the doctrine of last clear chance and contributory negligence shouldnt be
applied in this case.
The Court agreed with Achevera. It reversed its decision and held that Ramos was grossly
negligent for knowingly driving a defective vehicle on the highway. He was already advised to have the
same repaired, but still chose to use it. He should have foreseen, as an ordinarily prudent man should
have, that he would be putting himself and other vehicles at risk for driving a vehicle with a mechanical
problem. Ramos shouldve stopped using the jeep or had it repaired before using it. Instead, he assumed
the risk by driving the defective jeep, which later zig-zagged on the road, encroached the opposite lane,
and bumped Valdez vehicle. Thus, his widow should be barred from recovering damages from an
accident that happened solely from his own assumption of risk and negligence.
The Court found that both Ramos and Valdez acts were contemporaneous. Valdez didnt stop
nor turn to the rightmost portion of the highway to avoid Ramos incoming wiggling vehicle probably
because the former didnt know the extent of the defect of the jeep driven by Ramos. Thus, the Court
stated that the doctrine of last clear chance didnt apply to this case because even if Valdez had the last
chance to avoid the accident because the latter no longer had the opportunity to avoid the collision when
the defects of Ramos vehicle became evident. Valdez was left with only a matter of seconds to act. He
didnt have an opportunity to avoid the mishap. Thus, the Court found that no liability attached to Valdez
and Achevara because of Ramos assumption of risk in using a defective vehicle.
In the case of Pacis vs. Morales8, the Court created a new doctrine on the assumption of risk by finding
that the nature of the business that one chooses to engage in involves an assumption of risk on the
owners part. The petitioners in this case, Alfredo and Cleopatra Pacis, filed a case against Jerome
Morales and asked for damages for the death of their son. Their son, a 17-year old student named Alfred,
died from a gunshot wound from a shooting incident inside the Top Gun Firearms and Ammunitions Store,
owned by Morales, in Baguio. The gun that was used in the incident was brought in by a customer for
repair and was left in Morales custody. At the time the shooting happened, Morales was in Manila for a

8 613 SCRA 507, February 25, 2010.

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business trip. The gun was placed by Morales in a locked drawer of a table inside the gun store. He left
his sales agent Aristedes Matibag and Jason Herbolario in charge of the store. The two had been given
the keys to the shop, including the drawer where the gun was. However, without any reason to do so, the
two took out the gun from the drawer and put it on top of a table. Alfred Pacis grabbed the gun to examine
it, but Matibag asked him to return it. When Alfred handed the gun back to Matibag, it went off and a bullet
hit Alfred in the head.
A criminal case was filed against Matibag, but he was acquitted under the exempting circumstance of
accident under Article 12(4) of the RPC. The Trial Court awarded damages to the spouses Pacis after
finding Morales as civilly liable for Alfreds death under Article 2180 in relation to Article 2176. The
accidental shooting of Alfred was partly caused by Matibags negligence in handling the gun. Being the
employer, Morales was also liable for failing to exercise diligence in instructing his employees to be
careful in handling a loaded gun.
On appeal, Morales argued that he had kept the gun inside a locked drawer, thus that alone was
an indication that he took the necessary diligence to ensure that the gun wouldnt be accessible to
anyone. Moreover, since Morales is engaged in selling firearms and ammunitions, he ensured that not
just anyone would gain access to such articles unless they are interested in purchasing them only then
would such a person be allowed to get a hold of a gun. The Court of Appeals agreed that the precautions
that Morales undertook were enough and reversed the ruling of the Trial Court. It found that Morales
wasnt negligent in establishing such rules and regulations. The fact that the gun was taken away without
his knowledge and that it suddenly went off without a warning was an accident that he shouldnt be liable
for.
Ultimately, the Supreme Court found that since Morales was a gun dealer, he must exercise a
higher degree of diligence which is required of someone who has extremely dangerous instrumentalities
under PNP Circular No. 9 entitled Policy on Firearms and Ammunition Dealership/Repair. Morales is
presumed to know about firearms safety and shouldve never kept a loaded weapon in his store to avoid
the risk of harm or injury to others. He was under duty to ensure that the firearms in his store werent
loaded because they should be stored unloaded and separate from ammunition when there is no need to
keep them loaded.
Moreover, Morales was negligent in not checking the gun if it was loaded first when he accepted it
for repair. Had he done so, he couldve unloaded the gun to prevent any mishaps. He must be aware that
it was brought to the shop for repair precisely because it was defective and may accidentally discharge.
Thus, Morales failed to exercise diligence in running his business. The Court also found that he should
have stored it inside a vault, not just a drawer.

The Court mentioned that when compared to engaging in a business which involved little to no
risk, Morales business which involved dealing with dangerous weapons is an assumption of risk on his
part that required the exercise of extraordinary diligence. His failure to comply with the required diligence
when he assumed the risk of running such a business rendered him liable for any accidents that would
arise from it. The Court held that because of the nature of his business, his negligence in failing to
properly select and regulate his employees, and not checking if the gun that needed repairs was without
bullets, he cannot escape his liability to the spouses Pacis for the death of their son even if it was just an
accident.
In the case of Huang v Philippine Hoteliers, Inc. 9, the Court created a new doctrine on the
assumption of risk by holding that when a hotel guest assumes the risk of disregarding hotel policies, then
he must suffer the consequences of his actions and negligence.
In this case, Genevieve Huang and her friend, Delia Goldberg, were registered guests of Dusit
Hotel. They went out for a swim at the swimming pool at around 5:00 p.m. in the afternoon. At around
7:00 p.m., the swimming pool attendant told them that the pool area was about to be closed, so the two
guests proceeded to the shower room to dress up. When they finished, the entire pool area was already
pitch black and there were no people around anymore. They tried to enter the main door leading to the
hotel, but it was already locked. They waited for 10 minutes for the door to open, but since there was no
one there to open it, Huang looked for a phone. She saw one behind the lifeguards counter. While
walking towards it, she was hit by the folding wooden counter top, which knocked her down almost
unconscious. Delia used the phone to inform the hotel operator about the incident. The hotel staff arrived
immediately at the main door of the pool area, but it still took them at least 20 to 30 minutes to get inside.
When the door was finally opened, three chambermaids assisted Huang by placing an ice pack and
applying ointment on her head.
At her request, Huang was brought to the hotels coffee shop and demanded the services of the
hotel physician. Dr. Violeta Dalumpines arrived and asked her to sign a waiver first before rendering any
medical assistance. Huang refused to do so. Then, after she ate dinner and rested for a while, she left the
coffee shop and went home. Thereupon, Huang started experiencing extraordinary dizziness along with
an uncomfortable feeling in her stomach. She also began experiencing on and off severe headaches.
When she consulted two neurologists, it was found that she had a very serious and permanent brain
injury. Thus, she sued for damages against Philippine Hoteliers, Inc. (PHI) seeking for not less than
P100,000,000, which represent loss of earnings because of the injury caused a disruption on her practice
as a doctor.

9 687 SCRA 163, December 5, 2012.

She consulted more doctors and got several more symptoms of her condition. Her right eye
became detached, she felt severe pain in her head, arms, and legs, and it was slightly difficult for her to
concentrate. However, it was also discovered that she suffered from a stroke when she was 18 years old.
PHI responded that there was a sufficient notice posted on the door of the pool area to inform
people that it is only open from 7 a.m. to 7 p.m. Also, it was hotel policy to not putt off the lights until 10
p.m. to allow the housekeepers to clean the pool area. When Dr. Dalumpines examined Huang, the latter
insisted that everything was fine and said that hirudoid cream was enough. Dr. Dalumpines asked Huang
to write a certification regarding the incident and suggested to have an X-ray, but Huang replied that it
wasnt necessary and refused further medical attention. Huang even told Dr. Dalumpines that she fell
from a horse, had a stroke and a hysterectomy, she suffered from a blood disorder, and got on and off
headaches.
The Trial Court dismissed Huangs complaint and testimony for being self-serving and devoid of
credibility. There was no evidence to support her allegation that the lights in the pool area were off. She
didnt present Delia to corroborate her testimony. Moreover, the lights from the gym of the hotel radiate to
the pool area. It wasnt completely dark as Huang claimed. Thus, Huang wouldnt have met the accident if
had only acted with caution. Because her own negligence was the immediate and proximate cause of her
injury, she isnt entitled to damages.
The Trial Court also mentioned that even assuming that she suffered severe head injuries, she
cannot blame anyone, but herself for staying at the hotels pool area beyond its closing hours and for
lifting the folding wooden counter top that hit her head. The Court of Appeals affirmed the Trial Courts
findings and decision. It added that since Huang took the risk of overstaying when she and Delia decided
to take a shower. Thus, whatever happened to her was caused by her own negligence in following the
rules and she must bear her own losses.
The Supreme Court affirmed the decision of the lower courts. Her decision to stay beyond its
closing hours was an assumption of risk on her part. She willingly made the decision to take a shower in
the same area even when she knew that the pool area would be closed.There were no hotel staff to assist
her anymore at that time. Also, she was the one who lifted the wooden counter that fell on her. Had she
not done so or had she exercised more care when she lifted it, then it wouldnt have hit her head. There
was no negligence on PHIs part because they reminded her of the pool areas closing time and extended
medical assistance to her after the accident, but she was the one who refused.

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The Court also found that there was no causal connection between the recurring brain injury that
Huang experienced and the accident because the records show that she had a medical history which
mightve caused or contributed to the head trauma she suffered. Also, the testimonies of the doctors she
had consulted with cannot be given credence because they were not put on the witness stand. All in all,
the Court absolved PSI from any liability arising from the accident.
The cases have illustrated that when one assumes risk in pursuing a course of action, then one
must be ready to bear the consequences of ones action. A person must act with diligence that is required
by the circumstances of every situation. Thus, if a person assumes risk and doesnt act with the diligence
of a good father of a family, then there is no remedy available. The Court will not provide a recourse for
those who undertake risks that they are not ready to bear the consequences of. The damages from the
event cannot be demanded from another party who was not at fault. One who purposely puts ones self in
a place where some injury might be sustained by him cannot complain of such injury - volenti non fit
injuria.