TORTS AND DAMAGES (ATTY.

PAMARAN)

VICARIOUS LIABILITY (Imputed Negligence)

1. Basis

The obligation imposed by Article 2176 of the NCC for quasi-delicts is demandable not only for one's
own acts or omissions, but also for those persons for whom one is responsible (NCC, Art. 2180)

Atty: The liability imposed arises by virtue of a presumption of negligence on the part of the persons
made responsible from their failure to exercise due care and vigilance to prevent the damage. It is not
the representation or interest, but the non-performance of certain duties of precaution and prudence
which forms the foundation of such responsibility.

2. What is the nature of the liability?

As per De Leon case, liability of vicarious obligor is primary and direct, not subsidiary. It means that
their responsibility is now simultaneous, and no longer alternative. They may be held liable as if they
themselves committed the negligent act po. For example, an employer of a driver who was guilty in a car
accident may hold the employer as liable if the requisites for vicarious liability has been met po.

Atty: You are correct in saying that the liability is primary and direct. Differently stated, it is not
subsidiary. The act being punished is the negligent act of the one made vicariously liable. Hence, the
plaintiff may proceed against either or all the defendants. In law, they are considered joint tortfeasors
and responsibility of two or more persons who are liable for quasi-delict is solidary (Art. 2194). Joint
tortfeasors are not liable pro rata; the release of one tortfeasor does not operate to release the others

3. Who are vicariously liable?

Persons vicariously liable includes Parents (or to be specific, father, or in case of death/incapacity,
mother), Guardians (for minors/incapacitated living in their company and under their authority), owners
or managers of establishments (for their employees on the occasion of their functions or in the service
of branches where they are employed), teachers or heads of establishments of arts and trade, and even
the State (acting through a special agent).

Atty:  Article 2180 is not an exclusive list of persons vicariously liable...aside from those mentioned
above, who are the other entities vicariously liable?

Pursuant to vicarious liability, a corporation may be held directly and primary liable for tortious acts of
its officers or employees (NCC, Art. 2180).

In the absence of parents po, according to the Family Code, parental authority shall be exercised by the
surviving grandparents, oldest sibling, over 21 years old unless unfit or unqualified; or child’s actual
custodian, over 21 years old.
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A. Vicarious Liability of Parents and Guardians

1. What is the basis of this liability?

This principle of parental liability is a species of what is frequently designated as vicarious liability, or the
doctrine of "imputed negligence" under Anglo-American tort law, where a person is not only liable for
torts committed by himself, but also for torts committed by others with whom he has a certain
relationship and for whom he is responsible. Thus, parental liability is made a natural or logical
consequence of the duties and responsibilities of parents — their parental authority — which includes
the instructing, controlling and disciplining of the child. The basis for the doctrine of vicarious liability
was explained by the Court in Cangco v. Manila Railroad Co.

Atty: Correct. Simply stated, the basis of liability is the parental authority over their children. What then
are the requirements to hold the parents vicariously liable?

Atty: Also, note that the under Article 2180, it is the father and, in case of his death or incapacity, the
mother, who shall be responsible for the damage caused by the minor children who live in their
company.

Atty: Yet, under the Family Code, the liability is without any alternative qualification. Parental authority
is jointly exercised by both parents. Also the liability is amplified by the Child and Youth Welfare Code
which provides that the guardians or a relative or a family friend of the child may be held responsible.

Me: Sir, in addition to the case mention by Jed Zosa, The court also emphasized that "With respect to
extra-contractual obligation arising from negligence, whether of act or omission, it is competent for the
legislature to elect — and our Legislature has so elected — to limit such liability to cases in which the
person upon whom such an obligation is imposed is morally culpable or, on the contrary, for reasons of
public policy. to extend that liability, without regard to the lack of moral culpability, so as to include
responsibility for the negligence of those persons whose acts or omissions are imputable, by a legal
fiction, to others who are in a position to exercise an absolute or limited control over them. The
legislature which adopted our Civil Code has elected to limit extra-contractual liability — with certain
well-defined exceptions — to cases in which moral culpability can be directly imputed to the persons to
be charged. This moral responsibility may consist in having failed to exercise due care in one's own acts,
or in having failed to exercise due care in the selection and control of one's agent or servants, or in the
control of persons who, by reasons of their status, occupy a position of dependency with respect to the
person made liable for their conduct.

Atty: Thanks for this. I like the term "morally culpable". Of course, parents are morally culpable for the
acts of their children... As mentioned earlier, the basis of this liability is parental authority. What
constitutes parental authority?

Me: Sir, parental authority constitutes the "duty of supporting their children, keeping them in their
company and educating them in proportion to their means. At the same time, parental authority gives
them the right to correct and punish their children in moderation. (Fuellas vs. Cadano, citing Exconde vs.
Capuno, et al.,). Manresa said that:
“Since children and wards do not yet have the capacity to govern themselves, the law imposes upon the
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parents and guardians the duty of exercising special vigilance over the acts of their children and wards in
order that damages to third persons due to the ignorance, lack of foresight or discernment of such
children and wards may be avoided. If the parents and guardians fail to comply with this duty, they
should suffer the consequences of their abandonment or negligence by repairing the damage caused.”

2. Are the parents vicariously liable for the negligent act of their 20-year daughter?

Yes, though RA 6809 lowered the age of majority from 21 to 18, Article 236 of the family code was not
amended as regards to age. As long as the child lives in the company of the parent concerned, the
parents may be held liable.

Atty: Correct. Under RA 6809, even if the age of majority has been lowered, the vicarious liability of
parents over children living in their company extends until they reached the age of 21. It was specifically
provided that nothing in the law shall be construed to derogate from the duty or responsibility of
parents and guardians for children and wards below 21 years of age mentioned in Article 2180 of the
NCC.

Cha: Yes,  the Congress seems to have used the “deep pocket” policy of imposing vicarious liability on
parents of persons who are above eighteen (18) and below twenty-one (21). The parents are still being
made liable because they are the persons who are financially capable of satisfying any judgment
obligation.

3. Who is vicariously liable for the negligent act of a child undergoing the process of adoption?

Chris: Adopters are civilly liable for the tortious/criminal acts of their minor children who live with them.
This is so po since judicially adopted children are considered legitimate children of their adopting
parents. However, the biological parents may still be held liable as parental authority may not be given
retroactive effect so as to make the adopting parents the parties in a damage case filed against their
adopted child, for acts committed by the latter, when actual custody was yet lodged with the biological
parents.

Jed: Under Article 35 of the Child and Youth Welfare Code, parental authority is provisionally vested in
the adopting parents during the period of trial custody, i.e., before the issuance of a decree of adoption,
precisely because the adopting parents are given actual custody of the child during such trial period.

Eu: In cases of trial custody, the Court ruled in Tamarzo v. CA that under Article 35 of the Child and
Youth Welfare Code, parental authority is provisionally vested in the adopting parents during this
period. However, if the trial custody had not yet begun or had already been completed, actual custody
would be vested with the natural parents of the adoptee. (CLEARER)

Atty: If the minor child is undergoing the process of adoption in court, it is the parents, whether natural
or adopting, who has actual custody at the time of the act complained of shall be held liable. Under the
CYWC, parental authority is provisionally vested in the adopting parents during the period of trial
custody (the adopting parents are given actual custody). If trial custody period had not yet begun or had
already been completed, the actual custody was then with the natural parents.
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4. What are the different kinds of guardians?

Atty: There three kinds of guardians: *legal guardian (the parents, who by provision of law and without
need of judicial appointment); *guardian ad litem (a competent person appointed by the court for
purposes of a particular action or proceeding involving the minor); and *judicial guardian (competent
person appointed by the court over the person and property of the ward to represent the latter in all his
civil acts and transactions).

5. In the absence of a guardian, how shall the liability of a minor or insane person arising from
negligence be satisfied?

Chris: Accor ding to Article 2182, if the minor or insane person causing damage has no parents or
guardian, the minor or insane person shall be answerable with his own property in an action against him
where a guardian ad litem shall be appointed. De Facto guardians who are relatives and neighbors who
take upon themselves the duty to care and support orphaned children without passing through judicial
proceedings may also be held responsible.

Atty: What if the minor or insane has no property?

Chris: De Facto guardians who are relatives and neighbors who take upon themselves the duty to care
and support orphaned children without passing through judicial proceedings may also be held liable.

6. Are the parents/guardians entitled to reimbursement for what they paid to satisfy the minor or
ward’s liability arising from negligence?

Jed: it is implied that parents are not entitled to reimbursement due to the negligence of minors. The
reason is parental authority vested by the Civil Code upon such parents. The civil law assumes that when
an unemancipated child living with his parents commits a tortious acts, the parents were negligent in
the performance of their legal and natural duty closely to supervise the child who is in their custody and
control.

Allana: No. The parents/guardians are not entitled to reimbursement for what they paid out of vicarious
liability because their liability under the law is primary and direct and not merely subsidiary. This is
because such law is imposed on them due to their negligent supervision over the unemancipated child
and not just because their child committed a tortious act. This can be gleamed from the fact that under
Art. 2180 of the Civil Code, parents/guardians may be exempted from vicarious liability when it is proved
that they acted with the diligence of a good father of the family. Thus, the vicarious liability of
parents/guardians stems from the parents'/guardians' own negligence and therefore not reimbursable
to the child/ward.
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B. Vicarious Liability of Employers

1. How is employer-employee relationship established?

Ange- Employer-employee relationship may be established by the control test. Under the control test,
there is an employer-employee relationship when a person or the employer controls not only the result
to be achieved but also the manner and means to be used by the worker or the employee in attaining
such desired result.

Frit-  the ER EE relationship is established with the Control test, the relationship is said to exist where
the person for whom the services are performed reserves the right to control not only the end result but
also the manner and means utilized to achieve the same.

Atty-  Correct. This is basic. In this kind of vicarious liability, it is necessary to establish employer-
employee relationship. The factors include *selection and engagement, *payment of wages, *power of
dismissal and *control to the means and methods by which the work is to be accomplished.

Mariel- Sir. To establish the existence of an employer-employee relationship, jurisprudence has

invariably adhered to the four-fold test, to wit: (1) the selection and engagement of the employee; (2)
the payment of wages; (3) the power of dismissal; and (4) the power to control the employee's conduct,
or the control test.

And, in the case of Victor Meteoro vs. Creative Creatures Inc., the court ruled that to establish the 4
elements of employer-employee relationship, any competent and relevant evidence may be considered
including but not limited to: Identification Card, Cash Vouchers,Social Security Registration,
Appointment Letters , Employment Contract, Payroll Organization Charts,and Personnel List.

 2. Is there an employment relationship between a travel agency and an airline company?

Fritz- No there is no EE ER relationship between a travel agency and an airline company because the
travel agency does not have control over the manner and means on how the airline company will
perform its business. It does not pass the control test.

Atty- Correct. There is no employment relationship between a travel agency and the airline company. If
the passenger's cause of action against the airline company is based on quasi-delict, there must be
independent showing that the company was negligent. The mere fact that the employee of the airline's
agent committed a tort is inadequate (Villoria v. Continental Airlines, GR 188288)

3. What is the meaning of the term "managers" in Article 2180?

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Ally- The term "manager" in Article 2180 of the New Civil Code is used in the sense of an employer and
not employee. The owner and manager of an establishment or enterprises are liable for damages
caused by their employees in the service of employment or on the occassion of their functions

Eu- Sir the Court ruled in Philippine Rabbit Lines that the term “manager”, as used in Article 2180 of the
Civil Code, is used in the sense of “employer”. Conversely, the terms “employers” and “owners and
managers of an establishment or enterprise” do not embrace the manager of a corporation owning a
truck.

Sher- In the case of Phil. Rabbit lines vs Phil. Am forwarders the Supreme court held that The terms
“employers” and “owners and managers of an establishment or enterprise” used in article 2180 of the
Civil Code do not include the manager of a corporation. No tortious or quasi-delictual liability can be
fastened on the manager of the corporation because he himself may be regarded as an employee or
dependiente of his employer.

Fri- he word manager under Art 2180 is used as the same sense as employer

Atty-Correct. The term “managers” does not include the manager of a corporation who himself may be
regarded as an employee of the company (Phil Bus Rabbit v. Phil-American Forwarders, 63 SCRA 232)

4. Is a working scholar an employee of the school?

Ally- Working scholars are considered employees for purposes of applying Article 2180 of the New Civil
Code. The employer will be vicariously liable for the acts of the working scholar.

Atty- Correct. A working scholar, in relation to the school, is considered an employee. In one case, the
working scholar who is assigned as a janitor to clean the school premises for only two hours each day is
considered an employee. (Filamer Christian Institute v. CA, GR 75112, August 17, 1992)

Angel- Yes sir, a working scholar is considered an employee of the school for purposes of applying Article
2180. An employer is vicariously liable for the acts of a working scholar.

In the case of Filamer Christian Institute vs IAC, the SC reversed the trial court’s decision which absolved
Filamer from liability on the ground that Funtecha was a working scholar and was thus not an employee
of Filamer under the implementing rules of the Labor Code. The SC ruled that Art. 2180 of the Civil Code
is the applicable law in a civil suit for damages instituted by an injured person during a vehicular
accident against a working student of a school and against the school itself. The Court also stated that an
implementing rule on labor cannot be used by an employer as a shield to avoid liability under the
substantive provisions of the Civil Code.

5. Describe the diligence that an employer must observe in the selection and supervision of its
employees?

Aly- An employer must exercise the care and diligence of a good father of a family in the selection and
supervision of his employee. To evade solidary liability for quasi-delict committed by an employee, the
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employer must adduce sufficient proof that it exercised such degree of care.

In the selection of employees, employers are required to examine them as to their qualifications,
experience, and service records. In the supervision of employees, employers should formulate standard
operating procedures, monitor their implementation, and impose disciplinary measures for breaches
thereof. To establish compliance with these requirements, employers must submit concrete proof,
including documentary evidence.

Atty- The presumption of negligence on the part of the employer is either in the *selection or
*supervision of employees. In selection, the employer is required to examine the prospective employees
as to their qualifications, experience and service records. In supervision, the employer must formulate
standard operating procedures, monitor their implementation and impose disciplinary measures for
breaches thereof.

In one case, the SC ruled that the employer must not be satisfied with the applicant's mere possession
of a professional driver's license, or his ability to drive and physical fitness. The employer is liable when
he did not draft and implement training programs and guidelines on road safety for his employees

Moreover, testimonial evidence to establish diligence is not enough. There must be concrete or
documentary evidence. Allegations that the employer required its employees to submit police clearance
and undergo driving test is insufficient. Unsubstantiated and self-serving testimonies cannot overcome
the presumption of negligence.

Angel- Sir to cite an illustration in a collision case,

due diligence in selection of the employees is not satisfied by the finding that the applicant possessed a
professional driver’s license. The employer should also examine the applicant for his qualifications,
experience and record of service. Due diligence in supervision, on the other hand, requires the
formulation of rules and regulations for the guidance of employees and issuance of proper instructions
as well as actual implementation and monitoring of consistent compliance with the rules.

Atty- Mere possession of a driver's license is insufficient to establish the employer's diligence in the
selection of employees.

Me- The SC in Mercury Drug, et al. v. Sps. Huang,had the occasion to rule on the liability of the employer
for the negligent act of the employee while in the performance of his duties and functions. To be
relieved of liability, the employer should show that it exercised the diligence of a good father of a family,
both in the selection of the employee and in the supervision of the performance of his duties. Thus, in
the selection of its prospective employees, the employer is required to examine them as to their
qualifications, experience, and service records. . With respect to the supervision of its employees, the
employer should formulate standard operating procedures, monitor their implementation, and impose
disciplinary measures for their breach. To establish compliance with these requirements, employers
must submit concrete proof, including documentary evidence.

 6. An employee injured a third person while driving the company-issued vehicle in traveling to work. Is
the employer vicariously liable?
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Fri- No, the employer is not vicariously liable because travelling to work is not within the scope of the
assigned tasks of the employee. Art 2180 requires that the employee must be doing assigned tasks for
the employer to be vicariously liable.

Atty- Traveling to work is a personal concern of the employee. As simple as that.

An employee who uses his employer's vehicle in going from his work to a place where he intends to eat
or in returning to work from a meal is not ordinarily acting within the scope of his employment absent
evidence of some special benefit to the employer (e.g. the employee is able to reduce his time-off and to
devote more time for work after arriving earlier)

7. After rendering some overtime work in Makati, the employee went to a restaurant in Tagaytay to
eat dinner using a company-issued vehicle. At around 2am the following day, the employee injured a
third person while driving on his way home. Is the employer vicariously liable?

Iggy- No, the scope of vicarious liability under Art. 2180 only extends within the exercise of his duties
and any act done outside of it is not covered by the employer.In relation to the case since the act was
done after rendering work, it clearly falls outside of the scope of liability. Therefore the employer cannot
be held liable.

Alfred- No. 2180 dictates that in order for the employer to be liable vicariously, the act of the employee
in injuring a third person must be well within the bounds of his designated work or during/in
performance of a task inherently necessary for his job. In this case, when the employee went to the
restaurant after rendering overtime work, his capacity as an employee has ceased and has been acting
solely on his own accord. Hence, the employer cannot be held vicariously liable.

Mariel- No, Whenever an employee’s negligence causes damage or injury to another, there instantly
arises a presumption juris tantum that the employer failed to exercise diligentissimi patris families in the
selection (culpa in eligiendo) or supervision (culpa in vigilando) of its employees.

To avoid liability for a quasi-delict committed by his employee, an employer must overcome the
presumption by presenting convincing proof that he exercised the care and diligence of a good father of
a family in the selection and supervision of his employee. (Marcelino vs Ong)

Allana- No. An employer may not be held vicariously liable for acts of an employee beyond his scope of
duty. Article 2180 requires that that the injurious act of an employee be done within the bounds of his
assigned work for the employer to be liable.

In this case, although the employee rendered overtime work, the injury done by him does not make the
employer vicariously liable because said injury took place after his work and while he was on his way
home from his dinner in Tagaytay.

Moreover, the use of the company vehicle to return to his home does not make the employer
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vicariously liable because it does not immediately prove that the employee was acting within the
bounds of his duties, unless there is proof that there was benefit to the employer.

Me- No, In the case of Valenzuela vs. CA, the Court ruled that "the vicarious liability attaches only when
the tortious conduct of the employee relates to, or is in the course of his employment. The question to
ask should be whether, at the time of the damage or injury, the employer is engaged in the affairs or
concerns of the employer, or, independently, in that of his own. While the employer incurs no liability
when an employee’s conduct, act or omission is beyond the range of employment, a minor deviation
from the assigned task of an employee, however, does not affect the liability of an employer.”

C. Vicarious Liability of State

(Personal Notes)
Basis: State cannot be sued without its consent. Consent of the State to be sued can be manifested through a
special law or general law allowing the State to be sued.

Article 2180: The State is responsible in like manner when it acts through a special agent; but not when the damage
has been caused by the official to whom the task done properly pertains, in which case what is provided in Article
2176 shall be applicable.

The liability under the above-quoted provision is limited to acts of special agents. A special agent is one who receives
definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official.