CHAPTER 2 – Negligence

Banaco, Ar-Ar D.
Espino, Leirei Gem P.
Mangilit, Ramon Jr. S.
Sevilla, Rey Arvin D.
The Five Sources of Obligation under Article 1157 of the New Civil Code
are:
1. Law
2. Contracts
3. Quasi-Contracts
4. Delicts
5. Quasi Delicts
Quasi-Delicts

As defined by Article 2176 – Whoever by act or omission causes damage 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.

Elements:

1. There must be an act or omission constituting fault or negligence.

2. Damage caused by the said act or omission.

3. Causal relation between the damage and the act or omission.

Absence of Contract not a requisite for Quasi Delict
● although it is provided in Article 2176 that “there is no pre-existing contractual relation
between the parties” the supreme court has held that it is now well-settled that an
action based on quasi-delict can be maintained even if there is an existing
contractual relation between the parties

Duty need not be proved

● Duty need not be proved because it is already a given and is no longer part of the
elements of the cause of action that must be established.
● Duty is not contemplated in our Civil Code - what is contemplated in our civil code is
“general duty of care”
 Delict

· The elements as provided for in Article 365 of the RPC:

1. The offender does or fails to do an act

2. The doing or the failure to do that act is voluntary

3. It is without malice

4. The material damage results from the reckless imprudence

5. There is inexcusable lack of precaution on the part of the offender, taking into
consideration his employment or occupation, degree of intelligence, physical condition,
and other circumstances regarding persons, time, and place.

Culpa Contractual
● As provided for in Article 1170 - those who in the performance of an obligation are guilty of
fraud, negligence, or delay, are liable for damages.
● Actions based on contracts are not tort actions - negligence is only one of the ways of
breaching a contract.
 Culpa Aquiliana Culpa Contractual Culpa Criminal
(Quasi-Delcit) (Contract) (Delict)

Governing Law Article 2176 Article Article 1170-1174 of Article 365

1172-1174 of the the New Civil Code
New Civil Code

Criminal Intent Not Required Not Required Not Required for

torts
Required - only for
the criminal
liability to exist

Existence of Not Required Required Not Required

contractual
obligation

Nature of Right Private Private Public

Violated
Concurrence of Causes of Action
● A single act or omission may give rise to two or more causes of action – that is,
an act or omission may give rise to an action based on delict, quasi-delict, and
even a contract.
● NOTE: Article 2177 still applies - that the plaintiff cannot recover damages twice
for the same act or omission of the defendant and the similar proscription against
double recover under the Rules above-quoted.

Two or More Defendants

● The simultaneous or even successive acts or omissions of the two or more
persons may result in both culpa contractual and culpa aquiliana.
Negligence
● The Civil Code Article 1173 defines negligence as the omission of that degree of
diligence which is required by the nature of the obligation and corresponding to the
circumstances of persons, time, and place.
● It is not an absolute term and its application depends upon the situation of the parties
and the degree of care and vigilance which the circumstances reasonably require.
● It is a conduct.

Test of Negligence
● Did the defendant in doing the alleged negligent act use that reasonable care and
caution which an ordinarily prudent person would have used in the same situation.

Foreseeability
● The determination of negligence is a question of foresight on the part of the
tortfeasor.
● The court in cases it handles puts itself in the position of the defendant and decides if
a prudent man in the same position could have foreseen the harm that would result if
the conduct is pursued.
1. Abrogar vs. Cosmos Bottling Company – a marathon organizer was
held liable for the death of one of its contestants who was hit by a jeepney
– the court held that the organizer should have foreseen the dangers of
conducting a race alongside running vehicles and had the option to hold
the race on a different route.
2. A vehicle being driven by the defendant bumped another vehicle parked in
a highway, the Supreme Court ruled that the defendant was negligent
because at the time of the incident, he was driving in a highway at the rate
of 70 km/hr even though he could hardly see an object at the distance of
10 meters because of heavy rain.
Undue Risk
● Negligence is a conduct that creates an undue risk of harm to others.
● It refers to the potential for harm that is present in an act. Through the notion of
risk, what one person does can be regarded from the standpoint of what
another person might suffer.

Probability
● If there is a great probability and risk that damage will result, a person is
negligent if he did not exercise due diligence in the face of such great
probability.

NOTE:
1. Motive is not material in determining the presence of negligence
2. Purely moral faults are not covered
3. Prior conduct is what is important
4. Diligence does not necessarily mean the safest way of conduct
 G.R. No. L-12219, Amado Picart vs. Frank Smith Jr., March 15, 1918

FACTS:

● The petitioner was riding his pony/horse over the Carlatan Bridge at San Fernando La Union
● The defendant approached the petitioner from the opposite direction in an automobile going at 12
miles per hour.
● The petitioner was on the wrong lane (meant for automobiles)
● Both the petitioner and the respondent did not change direction nor reduce speed.
● At the last moment before collision the defendant attempted to avoid it by steering the automobile
however it was too late and the horse was hit in its hind leg – this resulted in the petitioner being
thrown off the horse – the horse also died later because of the injuries.

RULING:

● The court held that both the petitioner and the respondent were negligent in the case at bar.
● The defendant however has the last fair chance to avoid the impending harm and fails to do so.
 G.R. No. L-51806, Civil Aeronautics Administration vs. Court of Appeals and Ernest E. Simke,
November 8, 1988

FACTS:

● Respondent Simke, along with several persons went to Manila International Airport to meet his future
son-in law.
● In order to get a better view of the incoming passengers – he, along with his group wen to the viewing
deck or terrace of the airport.
● The respondent, while walking on the terrace slipped over an elevation (ramp) about 4 inches high at
the far end of the terrace – this resulted in him falling on his back and breaking his thighbone.
● Respondent filed an action for damages against the petitioner as they are the entity in charge of
maintain the said airport.
● The lower courts held that the petitioner is liable for the damage caused by the elevation as it was an
architectural anomaly – it is neither a ramp nor a step and is a hazard to the people there.

RULING:

● The court held that petitioner is indeed liable for damages

● The CAA has a duty to ensure the safety of the viewers using the facilities of the airport – the viewers
tendency was to look up towards the planes and not on the floor where the hazardous elevation was
located.
 G.R. No. 206184, Spouses Latonio vs. McGeorge Food Industries, Inc., December 6, 2017

FACTS:

● Petitioners along with their eight month old baby Ed Christian attended a birthday party at a McDonald’s
restaurant
● McDonald’s presented two mascots for the said event, Birdie and Grimace.
● Wanting to take a picture with the Birdie Mascot – they called him and said “papicture ta”
● The petitioners sat their baby in a chair – with the mascot positioning himself behind the chair with his arms
extending giving the image of a bird extending his wings.
● As photos were about to be taken, wanting to have a good photo, the mother (petitioner Mary Ann Latonio)
released her hold of the baby.
● The baby fell head first from the chair to the floor, (the baby did not die though).

RULING:

● The court held that the proximate cause of the injury was the mother’s negligence
● The mother should have foreseen that there is a danger to the baby and that the mascot would not be able to
hold of the baby if she let him go.
5.0 CALCULATION OF RISK
5.01 Risk Benefit Analysis
● Risk benefit analysis according to the late Dean William Prosser is “balancing the risk,
in the light of the social value of the interest threatened, and the probability and extent
of harm against the value of the interest which the actor is seeking to protect, and the
expedience of the course pursued.”

● Thing to consider according to the analytical framework of Risk Benefit Analysis:

a. Gravity of the harm to be avoided;
b. Utility of conduct or social value it seeks to advance;and
c. Alternative course of action, dangers and advantages to the person or property of the actor
himself and to others.
● Under this analytical framework the concept of reasonableness was
highlighted.
● There are five factors that determines reasonableness:
a. Magnitude of the risk;
■ A risk is more likely unreasonable the greater it is.
b. The value or importance of the principal object
■ The object which the law desires to protect
c. The collateral object
■ The reason why a person takes a risk of injuring the principal object.
d. Utility of the risk
■ The probability that the collateral object will be attained by the conduct which
involves risk to the principal
e. Necessity of the risk
■ The probability that the collateral object will be attained without taking the risk.
● The Hand Test
○ This is the principle found in the landmark opinion given by Judge Learned Hand in the
case of United States v. Carrol Towing Co.
○ Under the Hand Test the liability of a person for negligence was determined by an
algebraic formula.
○ The liability depends upon whether B < L x P
■ B = The burden of adequate precautions
■ L = The gravity of injury
■ P = The probability
5.02 The Rule in the Philippines

● Based on Philippine case law The Risk-Benefit Analysis and The Hand Test is
not applicable.
● The norm in this jurisdiction is to give negligence what Prof. Richard Epstein
calls “a common sense, intuitive interpretation.”
● The cases decided by the Supreme Court were decided based on intuition
and the determination of negligence were made after weighing all
circumstances
● There are three concepts that are considered here in the Philippines.
a. Cost of Precaution
■ The reasonable response of a reasonable man depends on the magnitude of
the risk.
■ Here the cost of precaution will only be relevant when though the risk is real, it is
considered to be fairly small.
b. Circumstances of the Case
■ This concept proves that under this jurisdiction, negligence is viewed to be relative or
comparative.
■ It means that its application depends upon the situation that the parties are in, and the
degree of care and vigilance that the prevailing circumstances reasonably require.
c. Circumstance in Statutes
■ According to this concept the statutory provisions that are applicable to negligence
cases specify the circumstances that should be considered in determining negligence.
6.0 CIRCUMSTANCES TO CONSIDER IN DETERMINING NEGLIGENCE

A.) Time
○ The time of the day affects the diligence required of the actor. The degree of diligence will vary
depending on the circumstance and depending on the time that such event occurred.
● Ex. A driver is required to exercise more prudence if he or she is driving at night.

B.) Place
○ The place of incident should also be considered in the determination of the diligence that
should be observed by a person.
● Ex. A driver driving near a school should exercise more diligence compared to when he
or she is passing by an uninhabited area.
C.) Emergency Rule
○ Under this rule the Court considers that an actor who is confronted with an emergency is not
to be held up to the standard of conduct normally applied to an individual who is in no such
situation.
○ The Supreme Court held in the cases of Gan v. Court of Appeals and Mckee v. Intermediate
Appellate Court :
● An individual who suddenly finds himself in a situation of danger and is required to act
without much time to consider the best means that may be adopted to avoid the
impending danger is not guilty of negligence if he fails to undertake what subsequently
and upon reflection may appear to be a better solution, unless the emergency was
brought by his own negligence.
○ However the case may be, the overall nature of the circumstances must be considered to
determine if the actor was not given any chance to reflect and adequately weigh a threatening
situation.
○ The Tortfeasor has the burden of proving that acted on an emergency.
D.) Gravity of Harm to be Avoided
○ This principle states that although the odds that an injury will result are not high, harm may still be
considered foreseeable if the gravity of harm to be avoided is great.

F.) Alternative Course of Action

○ Based on this circumstance if the alternative course of action presented to the tortfeasor or actor is too
costly, the harm that may result may still be considered unforeseeable to a reasonable man.

G.) Social Value or Utility of Activity

○ Under this concept the diligence which the law requires an individual to observe and exercise varies
according to the nature of the situation and the importance of the act which he has to perform.
○ However the duty to observe proper diligence cannot be taken for granted by the fact that there is high
social value involved.
○ An act is considered to be negligent if the risk outweighs the advantages or benefits.

H.) Person Exposed to the Risk

○ Here the character of the person exposed to the risk is also a circumstance that should be considered
in determining negligence.
○ Children are given extra importance under this circumstance because as stated in several
cases, children are actuated by similar childish instincts and impulses. They are likely to be
drawn towards anything which arouses the attention of the young and inquiring mind.
○ The failure of the owner of the premises to take precautions to prevent children from entering
such premises where they can be injured, even if they are technically trespassers, is
considered to be a negligent omission.
7.0 STANDARD OF CONDUCT: GOOD FATHER OF A FAMILY

● As the Supreme Court ruled in Picart v. Smith, the standard of conduct used
in the Philippines is that of Pater Familias in Roman Law.
● This is also the standard referred to in Article. 1173 of the New Civil Code,
which is a good father of a family.
● The concept of a good father of a family in relation to the determination of
liability simply means that the law considers what would be reckless,
blameworthy or negligent for a man of ordinary intelligence and prudence.
A.) Knowledge and Experience of the Actor
● The law conclusively presumes that a prudent man knows certain matters
based on actual knowledge and experience.
○ Ex. If the driver passes by a certain road on a daily basis, he is expected to know of any peril
or danger that is present on that road.
● Likewise a prudent man is also expected to know basic laws of nature and
physics.
○ Ex. Effects of heavy rain on the roads and the law of gravity
B. Children
● Acts or omissions of children are considered as exemptions to the general
rule on the standard of conduct which must be observed.
● The actions of a child cannot be judged based on the standard expected from
an ordinary adult.
● The rule in this jurisdiction is that the care and caution required of a child
depends to his or her maturity and capacity.
● When is a child considered to be negligent?

● Under the Revised Penal Code

○ A child 9 years old below is exempt from criminal liability
○ A child above 9 but below 15 is also exempt from criminal liability, unless proven that he acted with
discernment
● Under Section 6 of R.A. No. 9344 ( Juvenile Justice and Welfare Act of 2006)
○ A child 15 years old below is exempt from criminal liability
○ A child above 15 but below 18 is also exempt from criminal liability, unless proven that he acted
with discernment
● Application of the doctrine in Jarco Marketing Corporation, et al. v. Court of Appeals in relation to
R.A. No. 9344
○ A child 15 years old below is conclusively presumed to have acted without discernment, therefore
cannot be negligent
○ A child above 15 but below 18 can be negligent if proven that he/she acted with discernment.
● Liability of Children

● Under the Revised Penal Code

○ Liability without fault occurs when a child who is 9 years of age is held subsidiary liable with his
properties.
● Under Section 6 of R.A. No. 9344
○ Exemption from criminal liability does not include exemption from civil liability.
○ Therefore the absence of negligence does not necessarily mean absence of civil liability
● Under Article 2180 Civil Code or Article 221 of the Family Code
○ Absence of negligence on the part of the child does not excuse the parents from their vicarious liability
because they are liable for their own negligence in the supervision of their child.

*It should be noted that no contributory negligence will be appreciated against a

child who is incapable of negligence.
C. Physical Disability
● Mere weakness is not an excuse in negligence cases

● Thus, a weak person must still exercise the standard of conduct that should
be observed by a reasonable and prudent man.

● It is real physical disability that is being referred to in this chapter

● Standard of Conduct of Physical Disabled persons

○ As the Constitution recognizes, the right of disabled persons which is

manifested through the Magna Carta for Disabled Persons, the standard of
care expected from them is also different.

○ The standard of conduct that physically disabled persons must conform to, is
that of which a reasonable person with the same disability should observe.
■ As stated in Francisco v. Chemical Bulk Carriers Incorporated, one who is physically disabled is
required to use the same degree of care that a reasonable careful person who has the same
physical disability would use.
Experts and Professionals
● An expert should exhibit the care and skill of one ordinarily skilled in the
particular field that he is in.
● The responsibility of a professional should command the corpus
knowledge which forms part of the professional equipment of the ordinary
member of his profession.
● Those who undertake any work calling for special skills are required not only
to exercise reasonable care in what they do but also possess a standard
minimum of special knowledge and ability.
● He should not lag behind other ordinarily assiduous and intelligent members
of his profession.
a. Effect of Representation
● Where a peculiar skill is required in an activity, a person who offers his
services is understood as holding himself out to the public as possessing the
degree of skill commonly possessed by others, and if pretention is
unfounded, he commits species of fraud on every man who employs him
in reliance on his public profession.

● Impertia culpae adnumeratur (inexperience is counted as fault) it means that

a person holds himself out as an expert cannot raise as a defense the fact
that he is not an experienced professional.
b. Examples of Negligence of Experts

● The negligence of doctors, nurses, pharmacist, lawyers and accountants are

experts in their chosen field. It will be discussed on chapter 4 and 5.
c. Formal Education is NOT necessary
● The rule regarding experts is applicable not only to professionals like doctors, lawyers,
pilot and others, who have undergone formal education.
● Culion Ice Fish and Electric Co. v Philippines motors Corporation involves persons who
agreed to change the engine of a schooner from a gasoline consumer to a crude oil
burner. These person, particularly its general manage, presented that they were experts
in doing the contracted work. However, the schooner was destroyed by fire in the
course of the performance of the work agreed upon. The Supreme Court ruled that the
general manager did not use the skill that would have been exhibited by one ordinarily
expert in repairing gasoline engines on boats. A person who represented as being
competent to do things requiring professional skills would be liable for negligence if he
failed to exhibit the care and skill of one ordinarily skilled in the work that attempted to
do.
d. Nature of Activity Material

● Care required must also be commensurate with the danger that the activity
entails.
● Where the performance of work involves danger to the public unless
performed with skill, the ordinary prudent man is deemed to have such
required skill.
● For instance, a person engaged in the business of selling explosives or even
mere firecrackers should exercise due care commensurate with the demands
of such dangerous activity.
Nature of Activity

● Person impose themselves certain obligations and non-compliance therewith

will be considered negligence.
● There are activities which by nature impose duties to exercise a higher
degree of diligence. Example are: Banks and common carriers.
● Common carriers are required to exercise utmost diligence in the
performance of their functions. Under Article 1733 of the New Civil Code
imposes the duty on common carriers to exercise extraordinary diligence in
the vigilance over their passengers and transported goods.
● A higher degree of care is required of someone who has in his possession or
under his control an instrumentality that is extremely dangerous in character,
such dangerous weapons or substances.
Intoxication
● Mere intoxication is not negligence nor does the mere fact of intoxication establish want of
care
● It is but a circumstance to be considered with the other evidence tending to prove
negligence
● GENERAL RULE: It is immaterial whether a man is drunk or sober if no want of ordinary
care or prudence can be imputed to him, and no greater degree of care is required to be
exercised by an intoxicated man for his own protection than by a sober one.
● Under article 2185 of the new Civil Code states that it is presumed that a person driving a
motor vehicle has been negligent if at the time of the mishap, he was violating any traffic
regulation.
● If one’s conduct is characterized by proper degree of care and prudence, it is immaterial
whether he is drunk or sober.
Insanity
● Under the RPC, an insane person is exempt from criminal liability but NOT from civil
liability.
● The same rule is applicable under the Civil Code. The insanity of a person does not
excuse him or his guardian from liability based on quasi delict.
● Bases for liability:
a.) Where one of two innocent persons must suffer a loss, it should be borne by the
one who occasioned it.
b.) To induce those interested in the estate of the insane person (if he has one) to
restrain and control him.
c.) The fear that an insanity defense would lead to false claims of insanity to avoid
liability
Women

● Whether the passenger acted prudently or recklessly the age, sex and
physical condition of the passenger are circumstances necessarily affecting
the safety of the passenger should be considered.
● The question may be posed: Can we apply the same objective standard to
women that we are applying to a man or are we to assume that there is a
fundamental difference between the reaction or attitude of women compared
to men given the same set of facts?
● There is no unequivocal statement of the rule.
● There should be uniform standard of care for men and women
Standard v Specific Rules

Rules
1.) Are legal norms that are formal and mechanical.
2.) Triggered by a few easily identified factual matters and are opaque in
application to the values that they are designed to serve.
Standard
1.) Are flexible, context-sensitive legal norms that require evaluative judgments in
their application.
2.) Standard are the legal norms being followed in deciding negligence cases.
Baltimore & Ohio R.R. v Goodman
When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train
comes upon him before he is clear of the track. He knows that he must stop for the train not the train stop
for him. In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is
dangerously near he must stop and get out of his vehicle, although obviously he will not often be required
to do more than to stop and look. It seems to us that if he relies upon not hearing the train or any signal
and takes no further precaution he does so at his own risk. If at the last moment Goodman found himself
in an emergency it was his own fault that he did not reduce his speed earlier or come to a stop.

It is true as said in Flannelly v. Delaware & hudson Co. that the question of due very generally is left to the
jury. But the court is dealing with a standard of conduct, and when the standard of conduct is clear it
should be laid down once and for all by the courts.
Other factors to consider in determining negligence
● Violation of statutes and ordinances
May be treated either as:
1.) A circumstances which establish a presumption of negligence
2.) Negligence per se is the violation of a statute constitutes negligence, or negligence as a
matter of law.
● The reason for this is that the statute or ordinance becomes the standard of care or conduct
to which the reasonably prudent person is held.
3.) A circumstance which should be considered together with other circumstances as evidence of
negligence
When not negligence per se
● When unusual conditions occur, strict observance may defeat the purpose of
the rule and may even lead to adverse results.
● For instance, a statute or ordinance requiring all persons to walk on the
sidewalk may be construed as subject to an exception permitting pedestrians
to walk on the road itself, if doing so will prevent an accident.
Violation gives rise to presumptions in Minor Vehicles Mishaps

● There are specific statutes expressly provides that violation of statutory duty merely
establishes a presumption of negligence.
● Article 2184 states that in motor vehicle mishaps, the owner is solidarily liable with his driver,
if the former, who was in the vehicle, could have, by the use of the due diligence, prevented
the misfortune. It is disputably presumed that a driver was negligent, if he had been found
guilty of reckless driving or violating traffic regulations at least twice within the next preceding
two months.

If the owner was not in the motor vehicle, the provisions of article 2180 are applicable. (n)

● Under Article 2185. Unless there is proof to the contrary, it is presumed that a person driving
a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic
regulation. (n)
Violation of administrative rules
● Violation of a rule promulgated by a Commission or Board is NOT
negligence per se but may be evidence of negligence

● Violation of administrative order issued pursuant to and to implement a

statute as negligence per se.
Violation of rules and conduct

● The same rules applies to rules imposed by private individuals like an

employer. The order or prohibition of an employer violation thereof is merely a
possible evidence of negligence.
Proximate cause indispensable
● In any event, the requisites of quasi-delict must still be complete before an
action based thereon may prosper.
● Plaintiff must still present proof that the proximate cause of his injury is the
negligence of the defendant.
● NO liability attaches unless it appears that there was a causal connection
between the negligent act or omission charged and the injury is applicable
where the act or omission complained of constitutes a violation of some
statute or ordinance even though such violation constitutes negligence per se
or is prima facie evidence of negligence.
When violation establishes proximate cause

● Proof of violation of statute and damage to the plaintiff may itself establish
proximate cause.
● There are cases where the damage to the plaintiff is the damage that is
sought to be prevented by the statute.
Negligence per se rule reconsidered

● Statutes my also provide specific rules of conduct to be observe in a given

situation and may even impose penal sanctions in case the rule is not
observe.
● In this case, the law already determines in advance what a reasonable man
should do under certain circumstances.
● National Building COde and the Fire Code of the Philippines are examples of
statutes that provide for specific rules of conduct.
PRACTICE AND CUSTOM

● Compliance with the practice and custom in a community will not

automatically result in a finding that the actor is not guilty of negligence.
Non-compliance with the custom or practice in a community does not
necessarily mean that the actor was negligent.
● The way of doing things in a particular situation may, in fact, have ripened into
custom precisely because it is how a reasonable man would act under the
same circumstances.
 S. D. MARTINEZ, et al. v. WILLIAM VAN BUSKIRK, G.R. No. L-5691, December 27, 1910

Facts: On September 11, 1908, Carmen Ong de Martinez, was riding in a carromata on Calle Real,
Ermita, Manila, Philippines, when a delivery wagon belonging to William Van Buskirk, came along the
street in the opposite direction at a great speed, and run over to carromata severely wounding Carmen
Ong with a serious cut upon her head.

Van Buskirk presented evidence to the effect that the cochero, who was driving his delivery wagon at the
time the accident occurred, was a good servant and was considered a safe and reliable cochero;

That upon the delivery of some forage, the defendant’s cochero tied the driving lines of the horses to the
front end of the delivery wagon and then went back inside the wagon to unload the forage.

While unloading the forage, another vehicle drove by, the driver of which cracked a whip and made some
other noise, which frightened the horses attached to the delivery wagon and they ran away. The driver
was thrown out from the wagon and was unable to stop the horses resulting to a collision with the
carromata.
Issue: Whether or not the defendant be liable for the negligence of his cochero?

Held: It was held that the cochero of the defendant was not negligent in leaving the horses in the
manner described by the evidence in this case. The act of defendant’s driver in leaving the horses
in the manner proved was not unreasonable or imprudent. Acts that the performance of which has
not proved destructive or injurious and which have, therefore, been acquiesced in by society for
so long a time that they have ripened into custom, can not be held to be of themselves
unreasonable or imprudent. In fact, the very reason why they have been permitted by society is
that they are beneficial rather than prejudicial.

It is the universal practice to leave the horses in the manner in which they were left at the time of
the accident. Those conditions showing of themselves that the defendant’s cochero was not
negligent in the management of the horse.
Compliance with Rules and Statutes

● While violation of statute may be considered negligence per se,

non-compliance is not sine qua non of negligence.

● Compliance therewith is not conclusive that there was no negligence.

DEGREES OF DILIGENCE

● Extraordinary Diligence
○ Common carriers

● Ordinary Diligence (Article 1173 if the New Civil Code)

○ Diligence of a food father of a family
○ Ordinary diligence of a reasonable man
Do you agree that negligence is a basic question
of diligence?
Ans.:
YES. As Article 1173 of the New Civil Code provides, negligence or
fault is the omission of that diligence required by given circumstances.
Therefore, it is a basic question of the proper exercise of diligence.
DEGREES OF NEGLIGENCE

● Gross Negligence (Article 2231 of the Civil Code)

○ Article 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted with
gross negligence.

● Simple Negligence
DEFINITION OF GROSS NEGLIGENCE

● Negligence where there is “want of even slight care and diligence”. (Amadeo v. Rio Y
Olabarrieta, Inc., 95 Phil. 33)
● Negligence characterized by the want of slight care, acting or omitting to act in a
situation where there is a duty to act, not inadvertently but willfully and intentionally, with
a conscious indifference to consequences insofar as other persons may be affected.
(Fernando v. Sandiganbayan, G.R. No. 96183, August 19, 1992)
● “such entire want of care as to raise a presumption that the person in fault is conscious
of the probable consequences of carelessness, and is indifferent, or worse, to the
danger of injury to the person or property of others.” (Chan, Jr. v. Iglesia ni Cristo, Inc.)
Reckless Imprudence
Test to determine reckless imprudence (People v. Vistan, G.R. No. 17218, September 8, 1921)

“. . . the weight of authority will be found to support the proposition that where immediate personal
harm, preventable in the exercise of reasonable care, is threatened to a human being by reason of a
course of conduct which is being pursued by another, and the danger is visible and consciously
appreciated by the actor, the failure to use reasonable care to prevent the threatened injury
constitutes reckless negligence.”

Simple Imprudence
● Mere lack of prevision in situation where either the threatened harm is not immediate, or the danger
is not openly visible. (People v. Vistan, G.R. No. 17218, September 8, 1921)
NEGROS NAVIGATION CO., INC. V. THE COURT OF APPEALS, G.R. No. 110398, November 7, 1997

Facts: Private respondent Ramon Miranda purchased from the Negros Navigation Co., Inc. four special
cabin tickets for his wife, daughter, son and niece. The tickets were for the M/V Don Juan. The Don Juan
collided with the M/T Tacloban City, an oil tanker owned by the Philippine National Oil Company (PNOC)
and the PNOC Shipping and Transport Corporation (PNOC/STC). As a result, the M/V Don Juan sank.
Several of her passengers perished in the sea tragedy. The bodies of the four members of private
respondents’ families were never found.

Private respondents filed a complaint in the RTC against the Negros Navigation, the Philippine National
Oil Company (PNOC), and the PNOC Shipping and Transport Corporation (PNOC/STC), seeking
damages for the death of their family members. The RTC ruled in favor of the complainants and ordered
petitioner to pay for the damages. The CA affirmed the said decision.

Issue: Whether or not the crew members of petitioner to be negligent in the performance of their duties?
Held: Petitioner is guilty of negligence in (1) allowing or tolerating the ship captain and
crew members in playing mahjong during the voyage, (2) in failing to maintain the
vessel seaworthy and (3) in allowing the ship to carry more passengers than it was
allowed to carry.

Petitioner Negros Navigation was found equally negligent in tolerating the playing of
mahjong by the ship captain and other crew members while on board the ship and
failing to keep the M/V Don Juan seaworthy so much so that the ship sank within 10 to
15 minutes of its impact with the M/T Tacloban City. In addition, the Court found that the
Don Juan was overloaded.
PROOF OF NEGLIGENCE
BURDEN OF PROOF
Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his or her
claim or defense by the amount of evidence required by law. (Section 1 of Rule 131 of the Revised Rules of
Court)

Plaintiff
● Establish his cause of action.

Defendant
● Establish his defense.

Evidence

● testimonial, documentary, or real; expert witnesses (not limited to cases when the alleged tortfeasor is an
expert)
PRESUMPTIONS
Art. 2184. x x x It is disputably presumed that a driver was negligent, if he had been found
guilty of reckless driving or violating traffic regulations at least twice within the next preceding
two months. x x x
Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor
vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.
(n)
xxx xxx xxx
Art. 2188. There is prima facie presumption of negligence on the part of the defendant if the
death or injury results from his possession of dangerous weapons or substances, such as
firearms and poison, except when the possession or use thereof is indispensable in his
occupation or business.
What is the effect of the presumption stated in
Arts. 2184 and 2185?
Ans.:
In both provisions, the defendant is presumed
negligent unless there is proof to the contrary.
Facts that Must Be Established
● The party invoking the presumption must still establish certain factual preconditions before the presumption can
operate.

Traffic Rules and Law of the Road

● Provisions of the Land Transportation and Traffic code
(1) Law of the Road
● custom or practice that has become crystallized into an accepted system of rules regulating travel on
highways. e.g., speeding is an indicative of impudent behavior (Gabriel v. Court of Appeals)
● violation of these basic rules gives rise to presumption of negligence. (Pleyto v. Lomboy, G.R. No. 148737,
June 16, 2004)

Contractual Relationship
● May cause the presumption of negligence to arise. e.g., presumption of negligence in case a person was injured
in an accident involving common carriers
Article 2185 Does Not Apply to Non-Motorized Vehicles

“The Code Commission was cognizant of the difference in the natures and attached responsibilities of
motorized and non-motorized vehicles. Art. 2185 was not formulated to compel or ensure obeisance
by all to traffic rules and regulations. If such were indeed the evil sought to be remedied or guarded
against, then the framers of the Code would have expanded the provision to include non-motorized
vehicles or for that matter, pedestrians. Yet, that was not the case; thus the need arises to ascertain the
peculiarities attaching to a motorized vehicle within the dynamics of road travel. The fact that there has
long existed a higher degree of diligence and care imposed on motorized vehicles, arising from the special
nature of motor vehicle, leads to the inescapable conclusion that the qualification under Article 2185 exists
precisely to recognize such higher standard. Simply put, the standards applicable to motor vehicle
are not on equal footing with other types of vehicles.” (Añonuevi v. Court of Appeals, G.R. No.
130003, October 20, 2004)
RES IPSA LOQUITUR

● “the thing speaks for itself”

● The doctrine of res ipsa loquitur as a rule of evidence is peculiar to the law of
negligence which recognizes that prima facie negligence may be established
without direct proof and furnishes a substitute for specific proof of negligence.
The doctrine is not a rule of substantive law but merely a mode of proof or a
mere procedural convenience. (Laguyan v. Intermediate Appellate Court, G.R.
No. 73998, November 14, 1988)
Requisites (Rogelio Ramos v. Court of Appeals, G.R. No. 124354, December 29,
1999)
1. The accident is of a kind which ordinarily does not occur in the absence of someone's
negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or
defendants; and
3. The possibility of contributing conduct which would make the plaintiff responsible is
eliminated.

Accordingly, some court add to the three prerequisites for the application of the res ipsa loquitur
doctrine the further requirement that for the res ipsa loquitur doctrine to apply, it must appear
that the injured party had no knowledge or means of knowledge as to the cause of the
accident, or that the party to be charged with negligence has superior knowledge or
opportunity for explanation of the accident. (D.M. Consunji v. Court of Appeals, G.R. No.
137873, April 20, 2001)
Res Ipsa Loquitur as Evidentiary Rule

However, much has been said that res ipsa loquitur is not a rule of substantive
law and, as such, does not create or constitute an independent or separate
ground of liability. Instead, it is considered as merely evidentiary or in the
nature of a procedural rule. x x x It is simply a step in the process of such proof,
permitting the plaintiff to present along with the proof of the accident, enough of
the attending circumstances to invoke the doctrine, creating an inference or
presumption of negligence, and to thereby place on the defendant the burden of
going forward with proof. (Ramos, et al. v. Court of Appeals, et al, G.R. No.
124354, December 29, 1999)
Rationale

● As a matter of common knowledge and experience, the very nature of certain

types of occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in the absence of
some explanation by the defendant who is charged with negligence. (Doctrine
of common knowledge)
● Negligence may be deduced from the mere occurrence of the accident itself.
● It is a rule of necessity.
Cases When the Doctrine Was Applied

In Africa v. Caltex (Phil.), Inc., the Supreme Court applied the doctrine of res ipsa loquitur and adjudged
defendant Caltex liable for the damage done to the property of its neighbor when fire broke out in a Caltex
service station while gasoline from a tank truck was being unloaded into an underground storage tank
through a hose and the fire spread to and burned neighboring houses. The principle applies with equal
force because the gasoline station, with all its appliances, equipment, and employees, was under the
control of the defendant.

Similarly, the Court of Appeals found reason to apply the doctrine in Bernal v. Alonzo because of the
presence inside the peritonial cavity of a patient of a surgical gauze reported as missing after a ceasarian
operation.

In Macalinao v. Ong, the Supreme Court applied the doctrine of res ipsa loquitur to a collision of vehicles
explaining that no two vehicles traversing opposite lanes will collide as a matter of course unless someone
is negligent.
Does res ipsa loquitur apply even if there is direct
evidence?
Cases When the Doctrine Was Held Inapplicable

● If there is direct proof of absence or presence of negligence. It is invoked in favor of the

plaintiff in the absence of proof. (S. D. Martinez, et al. v. William Van Buskirk, G.R. No.
L-5691, December 27, 1910)
● It is not applicable when an unexplained accident may be attributable to one of several
causes, for some of which the defendant could not be responsible. (FGU Insurance
Corporation v. G.P. Sarmiento Trucking Corporation and Lambert M. Eroles, G.R. No.
141910, August 6, 2002)

In Wildvalley Shipping Co. v. Court of Appeals, the allegation that the negligence of the master of
the vessel is presumed because of the doctrine of res ipsa loquitur was rejected because it was not
established that the vessel was in his control at that time. x x x Hence, the second requisite - that
the instrumentality that caused You sent the damage was within the exclusive control of the
defendant - was not established.
Culpa Contractual

Res ipsa loquitur generally finds relevance whether or not a contractual relationship exists
between the plaintiff and the defendant, for the inference of negligence arises from the
circumstances and nature of the occurrence and not from the nature of the relation of
the parties. Nevertheless, the requirement that responsible causes other than those due to
defendant’s conduct must first be eliminated, for the doctrine to apply, should be understood
as being confined only to cases of pure (non-contractual) tort since obviously the
presumption of negligence in culpa contractual, as previously so pointed out,
immediately attaches by a failure of the covenant or its tenor. (FGU Insurance
Corporation v. G.P. Sarmiento Trucking Corporation and Lambert M. Eroles, G.R. No.
141910, August 6, 2002)
RADIO COMMUNICATIONS OF THE PHILS., INC. (RCPI) v. COURT OF APPEALS, et al., G.R. No.
L-44748, August 29, 1986

Facts: Loreto Dionela filed a complaint of damages against Radio Communications of the Philippines, Inc. (RCPI) due to
the telegram sent through its Manila Office to the former, reading as follows:

“176 AS JR 1215PM 9 PAID

MANDALUYONG JUL 22-66
LORETO DIONELA CABANGAN LEGASPI CITY.
WIRE ARRIVAL OF CHECK
FER.
LORETO DIONELA-CABANGAN-WIRE ARRIVAL OF CHECK-PER. 115 PM.
SA IYO WALANG PAKINABANG DUMATING KA DIYAN-WALA-KANG PADALA DITO-KAHIT BULBUL MO”

Loreto Dionela alleges that the defamatory words on the telegram sent to him wounded his feelings, caused him undue
embarrassment and affected adversely his business because other people have come to know of said defamatory words.
RCPI alleges that the additional words in Tagalog was a private joke between the sending and receiving operators, that they
were not addressed to or intended for plaintiff and therefore did not form part of the telegram, and that the Tagalog words
are not defamatory.
Issue: Whether or not there is a breach of contract thru the negligence of RCPI employees.

Held: Yes. RCPI was negligent as it failed to take the necessary or precautionary steps to avoid the
occurrence of the humiliating incident now complained of. The company had not imposed any safeguard
against such eventualities and this void in its operating procedure does not speak well of its concern for
their clientele’s interests. As a corporation, the petitioner can act only through its employees. As a
corporation, RCPI acts and conducts its business through its employees. To hold that the petitioner is not
liable directly for the acts of its employees in the pursuit of petitioner's business is to deprive the general
public availing of the services of the petitioner of an effective and adequate remedy. In most cases,
negligence must be proved in order that plaintiff may recover. However, since negligence may be hard to
substantiate in some cases, the Court applied the doctrine of RES IPSA LOQUITUR (the thing speaks for
itself), by considering the presence of facts or circumstances surrounding the injury.