G.R. No.

180440 : December 5, 2012

DR. GENEVIEVE L. HUANG, Petitioner, v. PHILIPPINE HOTELIERS, INC.,

DUSIT THANI PUBLIC CO., LTD. And FIRST LEPANTO TAISHO INSURANCE
CORPORATION, Respondents.

DECISION

PEREZ, J.:

For this Courts resolution is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court, assailing the Decision1 of the Court of Appeals in CA-G.R. CV No.
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87065 dated 9 August 2007, affirming the Decision2 of Branch 56 of the Regional
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Trial Court (RTC) of Makati City in Civil Case No. 96-1367 dated 21 February 2006,
dismissing for lack of merit herein petitioner Dr. Genevieve L. Huangs Complaint for
Damages. Assailed as well is the Court of Appeals Resolution3 dated 5 November ςrνl l

2007 denying for lack of merit petitioners Motion for Reconsideration.

This case stemmed from a Complaint for Damages filed on 28 August 1996 by
petitioner Dr. Genevieve L. Huang4 against herein respondents Philippine Hoteliers,
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Inc. (PHI)5 and Dusit Thani Public Co., Ltd. (DTPCI),6 as owners of Dusit Thani
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Hotel Manila (Dusit Hotel);7 and co-respondent First Lepanto Taisho Insurance
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Corporation (First Lepanto),8 as insurer of the aforesaid hotel. The said Complaint
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was premised on the alleged negligence of respondents PHI and DTPCIs staff, in the
untimely putting off all the lights within the hotels swimming pool area, as well as
the locking of the main entrance door of the area, prompting petitioner to grope for
a way out. While doing so, a folding wooden counter top fell on her head causing
her serious brain injury. The negligence was allegedly compounded by respondents
PHI and DTPCIs failure to render prompt and adequate medical assistance.

Petitioners version of the antecedents of this case is as follows: chanro blesvi rtua llawli bra ry

On 11 June 1995, Delia Goldberg (Delia), a registered guest of Dusit Hotel, invited
her friend, petitioner Dr. Genevieve L. Huang, for a swim at the hotels swimming
pool facility. They started bathing at around 5:00 p.m. At around 7:00 p.m., the
hotels swimming pool attendant informed them that the swimming pool area was
about to be closed. The two subsequently proceeded to the shower room adjacent
to the swimming pool to take a shower and dress up. However, when they came
out of the bathroom, the entire swimming pool area was already pitch black and
there was no longer any person around but the two of them. They carefully walked
towards the main door leading to the hotel but, to their surprise, the door was
locked.9ςrνl l

Petitioner and Delia waited for 10 more minutes near the door hoping someone
would come to their rescue but they waited in vain. Delia became anxious about
their situation so petitioner began to walk around to look for a house phone. Delia
followed petitioner. After some time, petitioner saw a phone behind the lifeguards
counter. While slowly walking towards the phone, a hard and heavy object, which
later turned out to be the folding wooden counter top, fell on petitioners head that
knocked her down almost unconscious.10 ςrνl l

Delia immediately got hold of the house phone and notified the hotel telephone
operator of the incident. Not long after, the hotel staff arrived at the main entrance
door of the swimming pool area but it took them at least 20 to 30 minutes to get
inside. When the door was finally opened, three hotel chambermaids assisted
petitioner by placing an ice pack and applying some ointment on her head. After
petitioner had slightly recovered, she requested to be assisted to the hotels coffee
shop to have some rest. Petitioner demanded the services of the hotel physician.11 ςrνl l

Dr. Violeta Dalumpines (Dr. Dalumpines) arrived. She approached petitioner and
introduced herself as the hotel physician. However, instead of immediately
providing the needed medical assistance, Dr. Dalumpines presented a "Waiver" and
demanded that it be signed by petitioner, otherwise, the hotel management will not
render her any assistance. Petitioner refused to do so.12 ςrνl l

After eating her dinner and having rested for a while, petitioner left the hotels
coffee shop and went home. Thereupon, petitioner started to feel extraordinary
dizziness accompanied by an uncomfortable feeling in her stomach, which lasted
until the following day. Petitioner was constrained to stay at home, thus, missing all
her important appointments with her patients. She also began experiencing "on"
and "off" severe headaches that caused her three (3) sleepless nights.13 ς rνll

Petitioner, thus, decided to consult a certain Dr. Perry Noble (Dr. Noble), a
neurologist from Makati Medical Center, who required her to have an X-ray and a
Magnetic Resonance Imaging (MRI) tests.14 The MRI Report15 dated 23 August
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1995 revealed the following findings:

CONSULTATION REPORT: chanroblesvi rtua llawli bra ry

MRI examination of the brain shows scattered areas of intraparenchymal contusions

and involving mainly the left middle and posterior temporal and slightly the right
anterior temporal lobe.

Other small areas of contusions with suggestive pertechiae are seen in the left
fronto-parietal, left parieto-occipital and with deep frontal periventricular subcortical
and cortical regions. There is no mass effect nor signs of localized hemorrhagic
extravasation.

The ventricles are not enlarged, quite symmetrical without shifts or deformities; the
peripheral sulci are within normal limits.

The C-P angles, petromastoids, sella, extrasellar and retro orbital areas appear
normal.

The brainstem is unremarkable.

IMPRESSION: Scattered small intraparenchymal contusions mainly involving the left
middle-posterior temporal lobe and also right medial anterior temporal, both deep
frontal subcortical, left parieto-occipital subcortical and cortical regions. Ischemic
etiology not ruled out. No localized intra - or extracerebral hemorrhage.16 ς rνll

Petitioner claimed that the aforesaid MRI result clearly showed that her head was
bruised. Based also on the same MRI result, Dr. Noble told her that she has a very
serious brain injury. In view thereof, Dr. Noble prescribed the necessary medicine
for her condition.17 ς rν ll

Petitioner likewise consulted a certain Dr. Ofelia Adapon, also a neurologist from
Makati Medical Center, who required her to undergo an Electroencephalogram
examination (EEG) to measure the electrostatic in her brain.18 Based on its ςrνl l

result,19 Dr. Ofelia Adapon informed her that she has a serious conditiona
ς rν ll

permanent one. Dr. Ofelia Adapon similarly prescribed medicines for her brain
injury.20ς rνll

Petitioners condition did not get better. Hence, sometime in September 1995, she
consulted another neuro-surgeon by the name of Dr. Renato Sibayan (Dr. Sibayan),
who required her to have an X-ray test.21 According to petitioner, Dr. Sibayans ς rνll

finding was the same as those of the previous doctors that she had consultedshe
has a serious brain injury.22 ςrνl l

By reason of the unfortunate 11 June 1995 incident inside the hotels swimming
pool area, petitioner also started to feel losing her memory, which greatly affected
and disrupted the practice of her chosen profession.23 Thus, on 25 October 1995, ς rν ll

petitioner, through counsel, sent a demand letter24 to respondents PHI and DTPCI ςrν ll

seeking payment of an amount not less than P100,000,000.00 representing loss of

earnings on her remaining life span. But, petitioners demand was unheeded.

In November 1995, petitioner went to the United States of America (USA) for
further medical treatment. She consulted a certain Dr. Gerald Steinberg and a
certain Dr. Joel Dokson25 from Mount Sinai Hospital who both found that she has
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"post traumatic-post concussion/contusion cephalgias-vascular and

neuralgia."26 She was then prescribed to take some medications for severe pain
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and to undergo physical therapy. Her condition did not improve so she returned to
the Philippines.27 ςrνl l

Petitioner, once again, consulted Dr. Sibayan, who simply told her to just relax and
to continue taking her medicines. Petitioner also consulted other neurologists, who
all advised her to just continue her medications and to undergo physical therapy for
her neck pain.28 ς rνll

Sometime in 1996, petitioner consulted as well a certain Dr. Victor Lopez (Dr.
Lopez), an ophthalmologist from the Makati Medical Center, because of her poor
vision, which she has experienced for several months.29 Petitioners Eye Report ς rνll

dated 5 March 199630 issued by Dr. Lopez stated: "IMPRESSION: Posterior vitreous
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detachment, right eye of floaters." Dr. Lopez told petitioner that her detached eye
is permanent and very serious. Dr. Lopez then prescribed an eye drop to
petitioner.31 ςrν ll

For petitioners frustration to dissipate and to regain her former strength and
physical well-being, she consulted another neuro-surgeon from Makati Medical
Center by the name of Dr. Leopoldo P. Pardo, Jr. (Dr. Pardo, Jr.).32 She disclosed ςrν ll

to Dr. Pardo, Jr. that at the age of 18 she suffered a stroke due to mitral valve
disease and that she was given treatments, which also resulted in
thrombocytopenia. In Dr. Pardo, Jr.s medical evaluation of petitioner dated 15 May
1996,33 he made the following diagnosis and opinion:
ς rνll cha nrob lesvi rtua llawli bra ry

DIAGNOSIS AND OPINION: chanroblesvi rtual lawlib rary

This patient sustained a severe head injury in (sic) 11 June 1995 and as a result of
which she developed the following injuries:

1. Cerebral Concussion and Contusion

2. Post-traumatic Epilepsy

3. Post-concussional Syndrome

4. Minimal Brain Dysfunction

5. Cervical Sprain, chronic recurrent

It is my opinion that the symptoms she complained of in the foregoing history are
all related to and a result of the injury sustained on 11 June 1995.

It is further my opinion that the above diagnosis and complaints do materially affect
her duties and functions as a practicing physician and dermatologist, and that she
will require treatment for an undetermined period of time.

The percentage of disability is not calculated at this time and will require further
evaluation and observation.34 ς rνll

Dr. Pardo, Jr. then advised petitioner to continue her medications.35 ς rν ll

Petitioner likewise consulted a certain Dr. Tenchavez36 for her follow-up EEG.37 He
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similarly prescribed medicine for petitioners deep brain injury. He also gave her
pain killer for her headache and advised her to undergo physical therapy. Her
symptoms, however, persisted all the more.38 ς rνll

In 1999, petitioner consulted another neurologist at the Makati Medical Center by

the name of Dr. Martesio Perez (Dr. Perez) because of severe fleeting pains in her
head, arms and legs; difficulty in concentration; and warm sensation of the legs,
which symptoms also occurred after the 11 June 1995 incident. Upon examination,
Dr. Perez observed that petitioner has been experiencing severe pains and she has
a slight difficulty in concentration. He likewise noted that there was a slight spasm
of petitioners neck muscle but, otherwise, there was no objective neurologic
finding. The rest of petitioners neurologic examination was essentially normal.39 ςrνl l

Dr. Perezs neurologic evaluation40 of petitioner reflected, among others: (1)

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petitioners past medical history, which includes, among others, mitral valve
stenosis; (2) an interpretation of petitioners EEG results in October 1995 and in
January 1999, i.e., the first EEG showed sharp waves seen bilaterally more on the
left while the second one was normal; and (3) interpretation of petitioners second
MRI result, i.e., petitioner has a permanent damage in the brain, which can happen
either after a head injury or after a stroke. Dr. Perez concluded that petitioner has
post-traumatic or post concussion syndrome.41 ςrν ll

Respondents, on the other hand, denied all the material allegations of petitioner
and, in turn, countered the latters statement of facts, thus: chan rob lesvi rtual lawlib rary

According to respondents PHI and DTPCI, a sufficient notice had been posted on the
glass door of the hotel leading to the swimming pool area to apprise the people,
especially the hotel guests, that the swimming pool area is open only from 7:00
a.m. to 7:00 p.m.42 Though the hotels swimming pool area is open only between
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the aforestated time, the lights thereon are kept on until 10:00 p.m. for, (1)
security reasons; (2) housekeeping personnel to do the cleaning of the swimming
pool surroundings; and (3) people doing their exercise routine at the Slimmers
World Gym adjacent to the swimming pool area, which was then open until 10:00
p.m., to have a good view of the hotels swimming pool. Even granting that the
lights in the hotels swimming pool area were turned off, it would not render the
area completely dark as the Slimmers World Gym near it was well-illuminated.43 ςrν ll

Further, on 11 June 1995, at round 7:00 p.m., the hotels swimming pool attendant
advised petitioner and Delia to take their showers as it was already closing time.
Afterwards, at around 7:40 p.m., Pearlie Benedicto-Lipana (Ms. Pearlie), the hotel
staff nurse, who was at the hotel clinic located at the mezzanine floor, received a
call from the hotel telephone operator informing her that there was a guest
requiring medical assistance at the hotels swimming pool area located one floor
above the clinic.44 ς rνll

Immediately, Ms. Pearlie got hold of her medical kit and hurriedly went to the
hotels swimming pool area. There she saw Delia and petitioner, who told her that
she was hit on the head by a folding wooden counter top. Although petitioner
looked normal as there was no indication of any blood or bruise on her head, Ms.
Pearlie still asked her if she needed any medical attention to which petitioner
replied that she is a doctor, she was fine and she did not need any medical
attention. Petitioner, instead, requested for a hirudoid cream to which Ms. Pearlie
acceded.45ςrνll

At about 8:00 p.m., after attending to petitioner, Ms. Pearlie went back to the hotel
clinic to inform Dr. Dalumpines of the incident at the hotels swimming pool area.
But before she could do that, Dr. Dalumpines had already chanced upon Delia and
petitioner at the hotels coffee shop and the latter reported to Dr. Dalumpines that
her head was hit by a folding wooden counter top while she was inside the hotels
swimming pool area. When asked by Dr. Dalumpines how she was, petitioner
responded she is a doctor, she was fine and she was already attended to by the
hotel nurse, who went at the hotels swimming pool area right after the accident.
Dr. Dalumpines then called Ms. Pearlie to verify the same, which the latter
confirmed.46ς rν ll

Afterwards, Dr. Dalumpines went back to petitioner and checked the latters
condition. Petitioner insisted that she was fine and that the hirudoid cream was
enough. Having been assured that everything was fine, Dr. Dalumpines requested
petitioner to execute a handwritten certification47 regarding the incident that
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occurred that night. Dr. Dalumpines then suggested to petitioner to have an X-ray
test. Petitioner replied that it was not necessary. Petitioner also refused further
medical attention.48 ς rνll

On 13 June 1995, petitioner called up Dr. Dalumpines. The call, however, had
nothing to do with the 11 June 1995 incident. Instead, petitioner merely engaged in
small talk with Dr. Dalumpines while having her daily massage. The two talked
about petitioners personal matters, i.e., past medical history, differences with
siblings and family over inheritance and difficulty in practice. Petitioner even
disclosed to Dr. Dalumpines that she once fell from a horse; that she had a stroke;
had hysterectomy and is incapable of having children for her uterus had already
been removed; that she had blood disorder, particularly lack of platelets, that can
cause bleeding; and she had an "on" and "off" headaches. Petitioner oftentimes
called Dr. Dalumpines at the hotel clinic to discuss topics similar to those discussed
during their 13 June 1995 conversation.49 ςrνl l

Also, during one of their telephone conversations, petitioner requested for a

certification regarding the 11 June 1995 incident inside the hotels swimming pool
area. Dr. Dalumpines accordingly issued Certification dated 7 September 1995,
which states that:50 ςrνl l

CERTIFICATION

This is to certify that as per Clinic records, duty nurse Pearlie was called to attend
to an accident at the poolside at 7:45PM on 11 June 1995.

Same records show that there, she saw petitioner who claimed the folding
countertop fell on her head when she lifted it to enter the lifeguards counter to use
the phone. She asked for Hirudoid.

The same evening petitioner met Dr. Dalumpines at the Coffee Shop. After
narrating the poolside incident and declining Dr. Dalumpines offer of assistance, she
reiterated that the Hirudoid cream was enough and that petitioner being a doctor
herself, knew her condition and she was all right.
This certification is given upon the request of petitioner for whatever purpose it
may serve, 7 September 1995 at Makati City.51 (Emphasis supplied).
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Petitioner personally picked up the afore-quoted Certification at the hotel clinic

without any objection as to its contents.52ςrν ll

From 11 June 1995 until 7 September 1995, the hotel clinic never received any
complaint from petitioner regarding the latters condition. The hotel itself neither
received any written complaint from petitioner.53 ς rν ll

After trial, the court a quo in its Decision dated 21 February 2006 dismissed
petitioners Complaint for lack of merit.

The trial court found petitioners testimony self-serving, thus, devoid of credibility.
Petitioner failed to present any evidence to substantiate her allegation that the
lights in the hotels swimming pool area were shut off at the time of the incident.
She did not even present her friend, Delia, to corroborate her testimony. More so,
petitioners testimony was contradicted by one of the witnesses presented by the
respondents who positively declared that it has been a normal practice of the hotel
management not to put off the lights until 10:00 p.m. to allow the housekeepers to
do the cleaning of the swimming pool surroundings, including the toilets and
counters. Also, the lights were kept on for security reasons and for the people in
the nearby gym to have a good view of the swimming pool while doing their
exercise routine. Besides, there was a remote possibility that the hotels swimming
pool area was in complete darkness as the aforesaid gym was then open until
10:00 p.m., and the lights radiate to the hotels swimming pool area. As such,
petitioner would not have met the accident had she only acted with care and
caution.54
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The trial court further struck down petitioners contention that the hotel
management did not extend medical assistance to her in the aftermath of the
accident. Records showed that the hotel management immediately responded after
being notified of the accident. The hotel nurse and the two chambermaids placed an
ice pack on petitioners head. They were willing to extend further emergency
assistance but petitioner refused and merely asked for a hirudoid cream. Petitioner
even told them she is a doctor and she was fine. Even the medical services offered
by the hotel physician were turned down by petitioner. Emphatically, petitioner
cannot fault the hotel for the injury she sustained as she herself did not heed the
warning that the swimming pool area is open only from 7:00 a.m. to 7:00 p.m. As
such, since petitioners own negligence was the immediate and proximate cause of
her injury, she cannot recover damages.55 ςrνl l

The trial court similarly observed that the records revealed no indication that the
head injury complained of by petitioner was the result of the alleged 11 June 1995
accident. Firstly, petitioner had a past medical history which might have been the
cause of her recurring brain injury. Secondly, the findings of Dr. Perez did not prove
a causal relation between the 11 June 1995 accident and the brain damage suffered
by petitioner. Even Dr. Perez himself testified that the symptoms being experienced
by petitioner might have been due to factors other than the head trauma she
allegedly suffered. It bears stressing that petitioner had been suffering from
different kinds of brain problems since she was 18 years old, which may have been
the cause of the recurring symptoms of head injury she is experiencing at present.
Absent, therefore, of any proof establishing the causal relation between the injury
she allegedly suffered on 11 June 1995 and the head pains she now suffers, her
claim must fail. Thirdly, Dr. Teresita Sanchezs (Dr. Sanchez) testimony cannot be
relied upon since she testified on the findings and conclusions of persons who were
never presented in court. Ergo, her testimony thereon was hearsay. Fourthly, the
medical reports/evaluations/certifications issued by myriads of doctors whom
petitioner sought for examination or treatment were neither identified nor testified
to by those who issued them. Being deemed as hearsay, they cannot be given
probative value. Even assuming that petitioner suffered head injury as a
consequence of the 11 June 1995 accident, she cannot blame anyone but herself
for staying at the hotels swimming pool area beyond its closing hours and for lifting
the folding wooden counter top that eventually hit her head.56 ς rνll

For petitioners failure to prove that her serious and permanent injury was the result
of the 11 June 1995 accident, thus, her claim for actual or compensatory damages,
loss of income, moral damages, exemplary damages and attorneys fees, must all
fail.57
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With regard to respondent First Lepantos liability, the trial court ruled that under
the contract of insurance, suffice it to state that absent any cause for any liability
against respondents PHI and DTPCI, respondent First Lepanto cannot be made
liable thereon.

Dissatisfied, petitioner elevated the matter to the Court of Appeals with the
following assignment of errors: (1) the trial court erred in finding that the
testimony of petitioner is self-serving and thus void of credibility; (2) the trial court
erred in applying the doctrine of proximate cause in cases of breach of contract and
even assuming arguendo that the doctrine is applicable, petitioner was able to
prove by sufficient evidence the causal connection between her injuries and
respondents PHI and DTPCIs negligent act; and (3) the trial court erred in holding
that petitioner is not entitled to damages.58 ςrν ll

On 9 August 2007, the Court of Appeals rendered a Decision affirming the findings
and conclusions of the trial court.

The Court of Appeals ratiocinated in this wise: chanroblesv irt uallawl ibra ry

At the outset, it is necessary for our purpose to determine whether to decide this
case on the theory that herein respondents PHI and DTPCI are liable for breach of
contract or on the theory of quasi-delict.

xxxx
It cannot be gainsaid that herein petitioners use of the hotels pool was only upon
the invitation of Delia, the hotels registered guest. As such, she cannot claim
contractual relationship between her and the hotel. Since the circumstances of the
present case do not evince a contractual relation between petitioner and
respondents, the rules on quasi-delict , thus, govern.

The pertinent provision of Art. 2176 of the Civil Code which states: "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."

A perusal of Article 2176 shows that obligations arising from quasi-delict or tort,
also known as extra-contractual obligations, arise only between parties not
otherwise bound by contract, whether express or implied. Thus, to sustain a claim
liability under quasi-delict, the following requisites must concur: (a) damages
suffered by the plaintiff; (b) fault or negligence of the defendant, or some other
person for whose acts he must respond; and (c) the connection of cause and effect
between the fault or negligence of the defendant and the damages incurred by the
plaintiff.

Viewed from the foregoing, the question now is whether respondents PHI and
DTPCI and its employees were negligent? We do not think so. Several factors
militate against petitioners contention.

One. Petitioner recognized the fact that the pool areas closing time is 7:00 p.m..
She, herself, admitted during her testimony that she was well aware of the sign
when she and Delia entered the pool area. Hence, upon knowing, at the outset, of
the pools closing time, she took the risk of overstaying when she decided to take
shower and leave the area beyond the closing hour. In fact, it was only upon the
advise of the pool attendants that she thereafter took her shower.

Two. She admitted, through her certification that she lifted the wooden bar
countertop, which then fell onto her head. The admission in her certificate proves
the circumstances surrounding the occurrence that transpired on the night of 11
June 1995. This is contrary to her assertion in the complaint and testimony that,
while she was passing through the counter door, she was suddenly knocked out by
a hard and heavy object. In view of the fact that she admitted having lifted the
counter top, it was her own doing, therefore, that made the counter top fell on to
her head.

Three. We cannot likewise subscribe to petitioners assertion that the pool area was
totally dark in that she herself admitted that she saw a telephone at the counter
after searching for one. It must be noted that petitioner and Delia had walked
around the pool area with ease since they were able to proceed to the glass
entrance door from shower room, and back to the counter area where the
telephone was located without encountering any untoward incident. Otherwise, she
could have easily stumbled over, or slid, or bumped into something while searching
for the telephone. This negates her assertion that the pool area was completely
dark, thereby, totally impairing her vision.

xxxx

The aforementioned circumstances lead us to no other conclusion than that the

proximate and immediate cause of the injury of petitioner was due to her own
negligence.

Moreover, petitioner failed to sufficiently substantiate that the medical symptoms

she is currently experiencing are the direct result of the head injury she sustained
on 11 June 1995 as was aptly discussed in the lower courts findings.

xxxx

It bears stressing that in civil cases, the law requires that the party who alleges a
fact and substantially asserts the affirmative of the issue has the burden of proving
it. Hence, for petitioner to be entitled to damages, she must show that she had
suffered an actionable injury. Regrettably, petitioner failed in this
regard.59 (Emphasis supplied).
ς rνll

Petitioners Motion for Reconsideration was denied for lack of merit in a Resolution
dated 5 November 2007.

Hence, this Petition raising the following issues:

(1) Whether or not the findings of fact of the trial court and of the Court of Appeals
are conclusive in this case.

(2) Whether or not herein respondents PHI and DTPCI are responsible by implied
contract to exercise due care for the safety and welfare of the petitioner.

(3) Whether or not the cause of action of the petitioner can be based on both
breach of contract and tort.

(4) Whether or not it is respondents PHI and DTPCI and its employees who are
liable to the petitioner for negligence, applying the well-established doctrines of res
ipsa loquitur and respondeat superior.

(5) Whether the petitioners debilitating and permanent injuries were a result of the
accident she suffered at the hotel on 11 June 1995.

(6) Whether or not the petitioner is entitled to the payment of damages, attorneys
fees, interest, and the costs of suit.

(7) Whether or not the respondent insurance company is liable, even directly, to
the petitioner.
(8) Whether or not petitioners motion for reconsideration of the decision of the
Court of Appeals is pro forma.60 ς rνll

Petitioner argues that the rule that "findings of fact of the lower courts are
conclusive and must be respected on appeal" finds no application herein because
this case falls under the jurisprudentially established exceptions. Moreover, since
the rationale behind the afore-mentioned rule is that "the trial judge is in a vantage
point to appreciate the conduct and behavior of the witnesses and has the
unexcelled opportunity to evaluate their testimony," one logical exception to the
rule that can be deduced therefrom is when the judge who decided the case is not
the same judge who heard and tried the case.

Petitioner further faults the Court of Appeals in ruling that no contractual

relationship existed between her and respondents PHI and DTPCI since her use of
the hotels swimming pool facility was only upon the invitation of the hotels
registered guest. On the contrary, petitioner maintains that an implied contract
existed between them in view of the fact that the hotel guest status extends to all
those who avail of its servicesits patrons and invitees. It follows then that all those
who patronize the hotel and its facilities, including those who are invited to partake
of those facilities, like petitioner, are generally regarded as guests of the hotel. As
such, respondents PHI and DTPCI are responsible by implied contract for the safety
and welfare of petitioner while the latter was inside their premises by exercising
due care, which they failed to do.

Petitioner even asserts that the existence of a contract between the parties does
not bar any liability for tort since the act that breaks a contract may also be a tort.
Hence, the concept of change of theory of cause of action pointed to by
respondents is irrelevant.

Petitioner similarly avows that the doctrines of res ipsa loquitur and respondeat
superior are applicable in this case. She argues that a person who goes in a hotel
without a "bukol" or hematoma and comes out of it with a "bukol" or hematoma is a
clear case of res ipsa loquitur. It was an accident caused by the fact that the hotel
staff was not present to lift the heavy counter top for petitioner as is normally
expected of them because they negligently locked the main entrance door of the
hotels swimming pool area. Following the doctrine of res ipsa loquitur, respondents
PHI and DTPCIs negligence is presumed and it is incumbent upon them to prove
otherwise but they failed to do so. Further, respondents PHI and DTPCI failed to
observe all the diligence of a good father of a family in the selection and
supervision of their employees, hence, following the doctrine of respondeat
superior, they were liable for the negligent acts of their staff in not verifying if there
were still people inside the swimming pool area before turning off the lights and
locking the door. Had respondents PHI and DTPCIs employees done so, petitioner
would not have been injured. Since respondents PHI and DTPCIs negligence need
not be proved, the lower courts erred in shifting the burden to petitioner and,
thereafter, holding the hotel and its employees not negligent for petitioners failure
to prove their negligence. Moreover, petitioner alleges that there was no
contributory negligence on her part for she did not do anything that could have
contributed to her injury. And, even if there was, the same does not bar recovery.

Petitioner equally declares that the evidence on record, including the objective
medical findings, had firmly established that her permanent debilitating injuries
were the direct result of the 11 June 1995 accident inside the hotels swimming pool
area. This fact has not been totally disputed by the respondents. Further, the
medical experts who had been consulted by petitioner were in unison in their
diagnoses of her condition. Petitioner was also able to prove that the falling of the
folding wooden counter top on her head while she was at the hotels swimming pool
area was the cause of her head, eye and neck injuries.

Petitioner reiterates her claim for an award of damages, to wit: actual, including
loss of income; moral, exemplary; as well as attorneys fees, interest and costs of
suit. She states that respondents PHI and DTPCI are liable for quasi-delict under
Articles 19, 2176 and 2180 of the New Civil Code. At the same time, they are liable
under an implied contract for they have a public duty to give due courtesy, to
exercise reasonable care and to provide safety to hotel guests, patrons and
invitees. Respondent First Lepanto, on the other hand, is directly liable under the
express contract of insurance.

Lastly, petitioner contends that her Motion for Reconsideration before the Court of
Appeals was not pro forma for it specifically pointed out the alleged errors in the
Court of Appeals Decision.

The instant Petition is devoid of merit.

Primarily, only errors of law and not of facts are reviewable by this Court in a
Petition for Review on Certiorari under Rule 45 of the Rules of Court.61 This Court is
ςrνl l

not a trier of facts and it is beyond its function to re-examine and weigh anew the
respective evidence of the parties.62 Besides, this Court adheres to the long
ςrνl l

standing doctrine that the factual findings of the trial court, especially when
affirmed by the Court of Appeals, are conclusive on the parties and this
Court.63 Nonetheless, this Court has, at times, allowed exceptions thereto, to wit:
ς rνll

(a) When the findings are grounded entirely on speculation, surmises, or

conjectures;

(b) When the inference made is manifestly mistaken, absurd, or impossible;

(c) When there is grave abuse of discretion;

(d) When the judgment is based on a misapprehension of facts;

(e) When the findings of facts are conflicting;

(f) When in making its findings the Court of Appeals went beyond the issues of the
case, or its findings are contrary to the admissions of both the appellant and the
appellee;

(g) When the Court of Appeals findings are contrary to those by the trial court;

(h) When the findings are conclusions without citation of specific evidence on which
they are based;

(i) When the facts set forth in the petition as well as in the petitioners main and
reply briefs are not disputed by the respondent;

(j) When the findings of fact are premised on the supposed absence of evidence
and contradicted by the evidence on record; or

(k) When the Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify a different
conclusion.64 ς rνll

Upon meticulous perusal of the records, however, this Court finds that none of
these exceptions is obtaining in this case. No such justifiable or compelling reasons
exist for this Court to depart from the general rule. This Court will not disturb the
factual findings of the trial court as affirmed by the Court of Appeals and adequately
supported by the evidence on record.

Also, this Court will not review the factual findings of the trial court simply because
the judge who heard and tried the case was not the same judge who penned the
decision. This fact alone does not diminish the veracity and correctness of the
factual findings of the trial court.65 Indeed, "the efficacy of a decision is not
ς rν ll

necessarily impaired by the fact that its writer only took over from a colleague who
had earlier presided at the trial, unless there is showing of grave abuse of discretion
in the factual findings reached by him."66 In this case, there was none.
ς rν ll

It bears stressing that in this jurisdiction there is a disputable presumption that the
trial courts decision is rendered by the judge in the regular performance of his
official duties. While the said presumption is only disputable, it is satisfactory unless
contradicted or overcame by other evidence. Encompassed in this presumption of
regularity is the presumption that the trial court judge, in resolving the case and
drafting the decision, reviewed, evaluated, and weighed all the evidence on record.
That the said trial court judge is not the same judge who heard the case and
received the evidence is of little consequence when the records and transcripts of
stenographic notes (TSNs) are complete and available for consideration by the
former,67 just like in the present case.
ς rνll

Irrefragably, the fact that the judge who penned the trial courts decision was not
the same judge who heard the case and received the evidence therein does not
render the findings in the said decision erroneous and unreliable. While the conduct
and demeanor of witnesses may sway a trial court judge in deciding a case, it is
not, and should not be, his only consideration. Even more vital for the trial court
judges decision are the contents and substance of the witnesses testimonies, as
borne out by the TSNs, as well as the object and documentary evidence submitted
and made part of the records of the case.68 ςrν ll

This Court examined the records, including the TSNs, and found no reason to
disturb the factual findings of both lower courts. This Court, thus, upholds their
conclusiveness.

In resolving the second and third issues, a determination of the cause of action on
which petitioners Complaint for Damages was anchored upon is called for.

Initially, petitioner was suing respondents PHI and DTPCI mainly on account of their
negligence but not on any breach of contract. Surprisingly, when the case was
elevated on appeal to the Court of Appeals, petitioner had a change of heart and
later claimed that an implied contract existed between her and respondents PHI and
DTPCI and that the latter were liable for breach of their obligation to keep her safe
and out of harm. This allegation was never an issue before the trial court. It was
not the cause of action relied upon by the petitioner not until the case was before
the Court of Appeals. Presently, petitioner claims that her cause of action can be
based both on quasi-delict and breach of contract.

A perusal of petitioners Complaint evidently shows that her cause of action was
based solely on quasi-delict. Telling are the following allegations in petitioners
Complaint:

6. THAT, in the evening of 11 June 1995, between the hours from 7:00 to 8:00
oclock, after herein petitioner and her friend from New York, Delia, the latter being
then a Hotel guest, were taking their shower after having a dip in the hotels
swimming pool, without any notice or warning, the Hotels staff put off all the lights
within the pool area including the lights on the hallway and also locked the main
entrance door of the pool area, x x x;

7. THAT, Hotel guest Delia started to panic while petitioner pacified her by telling
her not to worry as they would both find their way out. Petitioner knowing that
within the area there is a house phone, started to look around while Delia was
following her, eventually petitioner saw a phone behind the counter x x x, that
while slowly moving on towards the phone on a stooping manner due to the
darkness CAUSED BY UNTIMELY AND NEGLIGENTLY PUTTING OFF WITH THE
LIGHTS BY THE HEREIN RESPONDENTS PHI AND DTPCIS EMPLOYEE while passing
through the open counter door with its Folding Counter Top also opened, x x x, a
hard and heavy object fell onto the head of the petitioner that knocked her down
almost unconscious which hard and heavy object turned out to be the Folding
Counter Top;

8. THAT, Delia immediately got hold of the house phone and notified the Hotel
Telephone Operator about the incident, immediately the hotel staffs (sic) arrived
but they were stranded behind the main door of the pool entrance and it too (sic)
them more than twenty (20) minutes to locate the hotel maintenance employee
who holds the key of the said main entrance door;

9. THAT, when the door was opened, two Hotel Chamber Maids assisted the
petitioner to get out of the counter door. Petitioner being a Physician tried to
control her feelings although groggy and requested for a HURIDOID, a medicine for
HEMATOMA, as a huge lump developed on her head while the two Chamber Maids
assisted petitioner by holding the bag of ice on her head and applying the medicine
on the huge lump;

10. THAT, petitioner after having recovered slightly from her nightmare, though still
feeling weak, asked to be assisted to the Hotel Coffee Shop to take a rest but
requested for the hotels Physician. Despite her insistent requests, the Dusit Hotel
refused to lift a finger to assists petitioner who was then in distress until a lady
approached and introduced herself as the Hotels house Doctor. Instead however of
assisting petitioner by asking her what kind of assistance the Hotel could render, in
a DISCOURTEOUS MANNER presented instead a paper and demanding petitioner to
affix her signature telling her that the Hotel Management would only assists and
answer for all expenses incurred if petitioner signs the paper presented, but she
refused and petitioner instead wrote a marginal note on the said paper stating her
reason therefore, said paper later on turned out to be a WAIVER OF RIGHT or QUIT
CLAIM;

xxxx

14. THAT, due to the unfortunate incident caused by respondents PHI and DTPCIs
gross negligence despite medical assistance, petitioner started to feel losing her
memory that greatly affected and disrupted the practice of her chosen profession x
x x.

xxxx

19. THAT, due to respondents PHI and DTPCIs gross negligence as being narrated
which caused petitioner to suffer sleepless nights, depression, mental anguish,
serious anxiety, wounded feelings, and embarrassment with her Diplomate friends
in the profession and industry, her social standing in the community was greatly
affected and hence, respondents PHI and DTPCI must be imposed the hereunder
damages, prayed for x x x and Artile (sic) 2176 and 2199 of the New Civil Code of
the Philippines x x x.

xxxx

22. THAT, as to Moral, Exemplary and Actual Damages, as well as petitioners Loss
of Income, the amounts are stated in its prayer hereunder.69 ςrν ll

It is clear from petitioners allegations that her Complaint for Damages was
predicated on the alleged negligence of respondents PHI and DTPCIs staff in the
untimely putting off of all the lights within the hotels swimming pool area, as well
as the locking of its main door, prompting her to look for a way out leading to the
fall of the folding wooden counter top on her head causing her serious brain injury.
The said negligence was allegedly compounded by respondents PHI and DTPCIs
failure to render prompt and adequate medical assistance. These allegations in
petitioners Complaint constitute a cause of action for quasi-delict, which under the
New Civil Code is defined as an act, or omission which causes damage to another,
there being fault or negligence.70 ς rνll

It is evident from petitioners Complaint and from her open court testimony that the
reliance was on the alleged tortious acts committed against her by respondents PHI
and DTPCI, through their management and staff. It is now too late in the day to
raise the said argument for the first time before this Court.71 ςrν ll

Petitioners belated reliance on breach of contract as her cause of action cannot be

sanctioned by this Court. Well-settled is the rule that a party is not allowed to
change the theory of the case or the cause of action on appeal. Matters, theories or
arguments not submitted before the trial court cannot be considered for the first
time on appeal or certiorari.72 When a party adopts a certain theory in the court
ςrνl l

below, he will not be permitted to change his theory on appeal for to permit him to
do so would not only be unfair to the other party but it would also be offensive to
the basic rules of fair play, justice and due process.73 Hence, a party is bound by
ςrν ll

the theory he adopts and by the cause of action he stands on and cannot be
permitted after having lost thereon to repudiate his theory and cause of action and
adopt another and seek to re-litigate the matter anew either in the same forum or
on appeal.74 ς rνll

In that regard, this Court finds it significant to take note of the following differences
between quasi-delict (culpa aquilina) and breach of contract (culpa contractual). In
quasi-delict, negligence is direct, substantive and independent, while in breach of
contract, negligence is merely incidental to the performance of the contractual
obligation; there is a pre-existing contract or obligation.75 In quasi-delict, the
ς rνll

defense of "good father of a family" is a complete and proper defense insofar as

parents, guardians and employers are concerned, while in breach of contract, such
is not a complete and proper defense in the selection and supervision of
employees.76 In quasi- delict , there is no presumption of negligence and it is
ς rνll

incumbent upon the injured party to prove the negligence of the defendant,
otherwise, the formers complaint will be dismissed, while in breach of contract,
negligence is presumed so long as it can be proved that there was breach of the
contract and the burden is on the defendant to prove that there was no negligence
in the carrying out of the terms of the contract; the rule of respondeat superior is
followed.77ςrν ll

Viewed from the foregoing, petitioners change of theory or cause of action from
quasi-delict to breach of contract only on appeal would necessarily cause injustice
to respondents PHI and DTPCI. First, the latter will have no more opportunity to
present evidence to contradict petitioners new argument. Second, the burden of
proof will be shifted from petitioner to respondents PHI and DTPCI. Petitioners
change of theory from quasi-delict to breach ofcontract must be repudiated.
As petitioners cause of action is based on quasi-delict, it is incumbent upon her to
prove the presence of the following requisites before respondents PHI and DTPCI
can be held liable, to wit: (a) damages suffered by the plaintiff; (b) fault or
negligence of the defendant, or some other person for whose acts he must
respond; and (c) the connection of cause and effect between the fault or negligence
of the defendant and the damages incurred by the plaintiff.78 Further, since
ς rνll

petitioners case is for quasi-delict , the negligence or fault should be clearly

established as it is the basis of her action.79 The burden of proof is upon petitioner.
ςrν ll

Section 1, Rule 131 of the Rules of Court provides that "burden of proof is the duty
of a party to present evidence on the facts in issue necessary to establish his claim
or defense by the amount of evidence required by law." It is then up for the plaintiff
to establish his cause of action or the defendant to establish his defense. Therefore,
if the plaintiff alleged in his complaint that he was damaged because of the
negligent acts of the defendant, he has the burden of proving such negligence. It is
even presumed that a person takes ordinary care of his concerns. The quantum of
proof required is preponderance of evidence.80 ςrν ll

In this case, as found by the trial court and affirmed by the Court of Appeals,
petitioner utterly failed to prove the alleged negligence of respondents PHI and
DTPCI. Other than petitioners self-serving testimony that all the lights in the hotels
swimming pool area were shut off and the door was locked, which allegedly
prompted her to find a way out and in doing so a folding wooden counter top fell on
her head causing her injury, no other evidence was presented to substantiate the
same. Even her own companion during the night of the accident inside the hotels
swimming pool area was never presented to corroborate her allegations. Moreover,
petitioners aforesaid allegations were successfully rebutted by respondents PHI and
DTPCI. Here, we quote with conformity the observation of the trial court, thus: chan roble svirtuallaw lib rary

x x x Besides not being backed up by other supporting evidence, said statement is

being contradicted by the testimony of Engineer Dante L. Costas,81 who positively ςrν ll

declared that it has been a normal practice of the Hotel management not to put off
the lights until 10:00P.M. in order to allow the housekeepers to do the cleaning of
the pools surrounding, the toilets and the counters. It was also confirmed that the
lights were kept on for security reasons and so that the people exercising in the
nearby gym may be able to have a good view of the swimming pool. This Court also
takes note that the nearby gymnasium was normally open until 10:00 P.M. so that
there was a remote possibility the pool area was in complete darkness as was
alleged by herein petitioner, considering that the illumination which reflected from
the gym. Ergo, considering that the area were sufficient (sic) illuminated when the
alleged incident occurred, there could have been no reason for the petitioner to
have met said accident, much less to have been injured as a consequence thereof,
if she only acted with care and caution, which every ordinary person is expected to
do.82ς rν ll

More telling is the ratiocination of the Court of Appeals, to wit: chan roble svirtual lawlib rary
Viewed from the foregoing, the question now is whether respondents PHI and
DTPCI and its employees were negligent? We do not think so. Several factors
militate against petitioners contention.

One. Petitioner recognized the fact that the pool areas closing time is 7:00 p.m..
She, herself, admitted during her testimony that she was well aware of the sign
when she and Delia entered the pool area. Hence, upon knowing, at the outset, of
the pools closing time, she took the risk of overstaying when she decided to take
shower and leave the area beyond the closing hour. In fact, it was only upon the
advise of the pool attendants that she thereafter took her shower.

Two. She admitted, through her certification, that she lifted the wooden bar
countertop, which then fell on to her head. The admission in her certificate proves
the circumstances surrounding the occurrence that transpired on the night of 11
June 1995. This is contrary to her assertion in the complaint and testimony that,
while she was passing through the counter door, she was suddenly knocked out by
a hard and heavy object. In view of the fact that she admitted having lifted the
countertop, it was her own doing, therefore, that made the counter top fell on to
her head.

Three. We cannot likewise subscribe to petitioners assertion that the pool area was
totally dark in that she herself admitted that she saw a telephone at the counter
after searching for one. It must be noted that petitioner and Delia had walked
around the pool area with ease since they were able to proceed to the glass
entrance door from the shower room, and back to the counter area where the
telephone was located without encountering any untoward incident. Otherwise, she
could have easily stumbled over, or slid, or bumped into something while searching
for the telephone. This negates her assertion that the pool area was completely
dark, thereby, totally impairing her vision.

xxxx

The aforementioned circumstances lead us to no other conclusion than that the

proximate and immediate cause of the injury of petitioner was due to her own
negligence.83 (Emphasis supplied). ς rνll

Even petitioners assertion of negligence on the part of respondents PHI and DTPCI
in not rendering medical assistance to her is preposterous. Her own Complaint
affirmed that respondents PHI and DTPCI afforded medical assistance to her after
she met the unfortunate accident inside the hotels swimming pool facility. Below is
the portion of petitioners Complaint that would contradict her very own statement,
thus:chanrob lesvi rtual lawlib rary

14. THAT, due to the unfortunate incident caused by respondents PHI and DTPCIs
gross negligence despite medical assistance, petitioner started to feel losing her
memory that greatly affected and disrupted the practice of her chosen profession. x
x x.84 (Emphasis supplied).
ς rν ll
Also, as observed by the trial court, respondents PHI and DTPCI, indeed, extended
medical assistance to petitioner but it was petitioner who refused the same. The
trial court stated, thus:
chanroble svirtual lawlib rary

Further, herein petitioners asseverations that the Hotel Management did not extend
medical assistance to her in the aftermath of the alleged accident is not true. Again,
this statement was not supported by any evidence other that the sole and self-
serving testimony of petitioner. Thus, this Court cannot take petitioners statement
as a gospel truth. It bears stressing that the Hotel Management immediately
responded after it received notice of the incident. As a matter of fact, Ms. Pearlie,
the Hotel nurse, with two chambermaids holding an ice bag placed on petitioners
head came to the petitioner to extend emergency assistance when she was notified
of the incident, but petitioner merely asked for Hirudoid, saying she was fine, and
that she was a doctor and know how to take care of herself. Also, the Hotel,
through its in-house physician, Dr. Dalumpines offered its medical services to
petitioner when they met at the Hotels coffee shop, but again petitioner declined
the offer. Moreover, the Hotel as a show of concern for the petitioners welfare,
shouldered the expenses for the MRI services performed on petitioner at the Makati
Medical Center. Emphatically, petitioner herself cannot fault the Hotel for the injury
she allegedly suffered because she herself did not heed the warning at the pool to
the effect that it was only open from 7:00 to 7:00 P.M. Thus, when the petitioners
own negligence was the immediate and proximate cause of his injury, shecannot
recover damages x x x.85 ςrνll

With the foregoing, the following were clearly established, to wit: (1) petitioner
stayed in the hotels swimming pool facility beyond its closing hours; (2) she lifted
the folding wooden counter top that eventually hit her head; and (3) respondents
PHI and DTPCI extended medical assistance to her. As such, no negligence can be
attributed either to respondents PHI and DTPCI or to their staff and/or
management. Since the question of negligence is one of fact, this Court is bound by
the said factual findings made by the lower courts. It has been repeatedly held that
the trial court's factual findings, when affirmed by the Court of Appeals, are
conclusive and binding upon this Court, if they are not tainted with arbitrariness or
oversight of some fact or circumstance of significance and influence. Petitioner has
not presented sufficient ground to warrant a deviation from this rule.86 ς rνll

With regard to petitioners contention that the principles of res ipsa loquitur and
respondeat superior are applicable in this case, this Court holds otherwise.

Res ipsa loquitur is a Latin phrase which literally means "the thing or the
transaction speaks for itself." It relates to the fact of an injury that sets out an
inference to the cause thereof or establishes the plaintiffs prima facie case. The
doctrine rests on inference and not on presumption. The facts of the occurrence
warrant the supposition of negligence and they furnish circumstantial evidence of
negligence when direct evidence is lacking.87 Simply stated, this doctrine finds no
ςrν ll

application if there is direct proof of absence or presence of negligence. If there is

sufficient proof showing the conditions and circumstances under which the injury
occurred, then the creative reason for the said doctrine disappears.88 ς rνll
Further, the doctrine of res ipsa loquitur applies where, (1) the accident was of such
character as to warrant an inference that it would not have happened except for the
defendants negligence; (2) the accident must have been caused by an agency or
instrumentality within the exclusive management or control of the person charged
with the negligence complained of; and (3) the accident must not have been due to
any voluntary action or contribution on the part of the person injured.89 ς rνll

In the case at bench, even granting that respondents PHI and DTPCIs staff
negligently turned off the lights and locked the door, the folding wooden counter
top would still not fall on petitioners head had she not lifted the same. Although the
folding wooden counter top is within the exclusive management or control of
respondents PHI and DTPCI, the falling of the same and hitting the head of
petitioner was not due to the negligence of the former. As found by both lower
courts, the folding wooden counter top did not fall on petitioners head without any
human intervention. Records showed that petitioner lifted the said folding wooden
counter top that eventually fell and hit her head. The same was evidenced by the,
(1) 11 June 1995 handwritten certification of petitioner herself; (2) her Letter dated
30 August 1995 addressed to Mr. Yoshikazu Masuda (Mr. Masuda), General
Manager of Dusit Hotel; and, (3) Certification dated 7 September 1995 issued to
her by Dr. Dalumpines upon her request, which contents she never questioned.

Here, we, respectively, quote the 11 June 1995 handwritten certification of

petitioner; her letter to Mr. Masuda dated 30 August 1995; and Dr. Dalumpines
Certification dated 7 September 1995, to wit: c hanro blesvi rt uallawl ibra ry

Petitioners 11 June 1995 Handwritten Certification: cha nrob lesvi rtua llawli bra ry

I was requested by Dr. Dalumpines to write that I was assured of assistance should
it be necessary with regard an accident at the pool. x x x The phone was in an
enclosed area on a chair I lifted the wooden bar counter top which then fell on my
head producing a large hematoma x x x.90 ς rνll

Petitioners Letter addressed to Mr. Masuda dated 30 August 1995:

Dear Mr. Masuda,

xxxx

x x x We searched and saw a phone on a chair behind a towel counter. However, in

order to get behind the counter I had to lift a hinged massive wooden section of the
counter which subsequently fell and knocked me on my head x x x.91 ςrνll

Dr. Dalumpines Certification dated 7 September 1995:

CERTIFICATION
This is to certify that as per Clinic records, duty nurse Pearlie was called to attend
to an accident at the poolside at 7:45PM on 11 June 1995.

Same records show that there, she saw petitioner who claimed the folding
countertop fell on her head when she lifted it to enter the lifeguards counter to use
the phone. She asked for Hirudoid.

The same evening petitioner met Dr. Dalumpnes at the Coffee Shop. After narrating
the poolside incident and declining Dr. Dalumpines offer of assistance, she
reiterated that the Hirudoid cream was enough and that petitioner]being a doctor
herself, knew her condition and she was all right.

This certification is given upon the request of petitioner for whatever purpose it
may serve, 7 September 1995 at Makati City.92 (Emphasis supplied).
ςrνl l

This Court is not unaware that in petitioners Complaint and in her open court
testimony, her assertion was, "while she was passing through the counter door, she
was suddenly knocked out by a hard and heavy object, which turned out to be the
folding wooden counter top." However, in her open court testimony, particularly
during cross-examination, petitioner confirmed that she made such statement that
"she lifted the hinge massive wooden section of the counter near the swimming
pool."93 In view thereof, this Court cannot acquiesce petitioners theory that her
ςrν ll

case is one of res ipsa loquitur as it was sufficiently established how petitioner
obtained that "bukol" or "hematoma."

The doctrine of respondeat superior finds no application in the absence of any

showing that the employees of respondents PHI and DTPCI were negligent. Since in
this case, the trial court and the appellate court found no negligence on the part of
the employees of respondents PHI and DTPCI, thus, the latter cannot also be held
liable for negligence and be made to pay the millions of pesos damages prayed for
by petitioner.

The issue on whether petitioners debilitating and permanent injuries were the result
of the accident she suffered at the hotels swimming pool area on 11 June 1995 is
another question of fact, which is beyond the function of this Court to resolve. More
so, this issue has already been properly passed upon by the trial court and the
Court of Appeals. To repeat, this Court is bound by the factual findings of the lower
courts and there is no cogent reason to depart from the said rule.

The following observations of the trial court are controlling on this matter: chanro blesvi rtua llawli bra ry

Firstly, petitioner had a past medical history which might have been the cause of
her recurring brain injury.

Secondly, the findings of Dr. Perez did not prove a causal relation between the 11
June 1995 accident and the brain damage suffered by petitioner. Dr. Perez himself
testified that the symptoms being experienced by petitioner might have been due
to factors other than the head trauma she allegedly suffered. Emphasis must be
given to the fact that petitioner had been suffering from different kinds of brain
problems since she was 18 years old, which may have been the cause of the
recurring symptoms of head injury she is experiencing at present.

Thirdly, Dr. Sanchezs testimony cannot be relied upon since she testified on the
findings and conclusions of persons who were never presented in court. Ergo, her
testimony thereon was hearsay. A witness can testify only with regard to facts of
which they have personal knowledge. Testimonial or documentary evidence is
hearsay if it is based, not on the personal knowledge of the witness, but on the
knowledge of some other person not on the witness stand. Consequently, hearsay
evidence -- whether objected to or not -- has no probative value.94 ς rνll

Fourthly, the medical reports/evaluations/certifications issued by myriads of doctors

whom petitioner sought for examination or treatment were neither identified nor
testified to by those who issued them. Being deemed as hearsay, they cannot be
given probative value.

The aforesaid medical reports/evaluations/certifications of different doctors in favor

of petitioner cannot be given probative value and their contents cannot be deemed
to constitute proof of the facts stated therein. It must be stressed that a document
or writing which is admitted not as independent evidence but merely as part of the
testimony of a witness does not constitute proof of the facts related therein.95 In ς rν ll

the same vein, the medical certificate which was identified and interpreted in court
by another doctor was not accorded probative value because the doctor who
prepared it was not presented for its identification. Similarly, in this case, since the
doctors who examined petitioner were not presented to testify on their findings, the
medical certificates issued on their behalf and identified by another doctor cannot
be admitted as evidence. Since a medical certificate involves an opinion of one who
must first be established as an expert witness, it cannot be given weight or credit
unless the doctor who issued it is presented in court to show his
qualifications.96 Thus, an unverified and unidentified private document cannot be
ςrνl l

accorded probative value. It is precluded because the party against whom it is

presented is deprived of the right and opportunity to cross-examine the person to
whom the statements or writings are attributed. Its executor or author should be
presented as a witness to provide the other party to the litigation the opportunity to
question its contents. Being mere hearsay evidence, failure to present the author of
the letter renders its contents suspect and of no probative value.97 ςrν ll

All told, in the absence of negligence on the part of respondents PHI and DTPCI, as
well as their management and staff, they cannot be made Iiable to pay for the
millions of damages prayed for by the petitioner. Since respondents PHI and DTPCI
arc not liable, it necessarily follows that respondent First Lepanto cannot also be
made liable under the contract or Insurance. ςη αοbl ενιrυαl lαωl ιbrαr

WHEREFORE, premises considered, the Decision and Resolution or the Court of

Appeals in CA-G.R. CV No. 87065 dated 9 August 2007 and 5 November 2007,
respectively, are hereby AFFIRMED. Costs against petitioner. ς rαl αωl ιb rαr
SO ORDERED.

[G.R. No. 152033, March 16 : 2011]

FILIPINAS SYNTHETIC FIBER CORPORATION, PETITIONER, VS. WILFREDO

DE LOS SANTOS, BENITO JOSE DE LOS SANTOS, MARIA ELENA DE LOS
SANTOS AND CARMINA VDA. DE LOS SANTOS, RESPONDENTS.

DECISION

PERALTA, J.:

This Petition for Review under Rule 45 of the 1997 Rules of Civil Procedure assails
the Decision[1] of the Court of Appeals (CA) dated August 15, 2001, affirming with
modification, the Decision[2] dated February 14, 1994 of the Regional Trial Court
(RTC), and the Resolution dated January 29, 2002 of the CA, denying petitioner's
Motion for Reconsideration.

This all stems from a case for damages filed against the petitioner and one of its
employees. The facts, as found by the RTC and the CA, are as follows:

On the night of September 30, 1984, Teresa Elena Legarda-de los Santos (Teresa
Elena), the wife of respondent Wilfredo de los Santos (Wilfredo), performed at the
Rizal Theater in Makati City, Metro Manila as a member of the cast for the musical
play, Woman of the Year.

On that same night, at the request of Wilfredo, his brother Armando de los Santos
(Armando), husband of respondent Carmina Vda. de los Santos, went to the Rizal
Theater to fetch Teresa Elena after the latter's performance. He drove a 1980
Mitsubishi Galant Sigma (Galant Sigma) with Plate No. NSL 559, a company car
assigned to Wilfredo.

Two other members of the cast of Woman of the Year, namely, Annabel Vilches
(Annabel) and Jerome Macuja, joined Teresa Elena in the Galant Sigma.

Around 11:30 p.m., while travelling along the Katipunan Road (White Plains), the
Galant Sigma collided with the shuttle bus owned by petitioner and driven by
Alfredo S. Mejia (Mejia), an employee of petitioner. The Galant Sigma was dragged
about 12 meters from the point of impact, across the White Plains Road landing
near the perimeter fence of Camp Aguinaldo, where the Galant Sigma burst into
flames and burned to death beyond recognition all four occupants of the car.

A criminal charge for reckless imprudence resulting in damage to property with

multiple homicide was brought against Mejia, which was decided in favor of Mejia.
The family of Annabel filed a civil case against petitioner and Mejia docketed as Civil
Case No. Q-51382, which was raffled to Branch 82 of the RTC of Quezon City.
Wilfredo and Carmina, joined by their minor children, also filed separate actions for
damages against petitioner and Mejia. The said cases were eventually consolidated.
After trial on the merits, the RTC decided in favor of herein respondents. The
dispositive portion of the decision reads:

WHEREFORE, in view of the foregoing, this Court finds the herein plaintiffs in Civil
Case Nos. Q-44498 and Q-45602, namely Wilfredo de los Santos, et al. and
Carmina Vda. de los Santos, et al., respectively, to have duly proven their causes of
action against Filipinas Synthetic Fiber Corporation and Alfredo S. Mejia, defendants
in both cases, thru preponderance of evidence, hence, Judgment is hereby
rendered ordering defendants, jointly and severally, to pay the herein plaintiffs in
Civil Case No. Q-44498, (1) for actual damages, P29,550.00, with interest thereon
at the legal rate until paid; (2) the amount of P4,769,525.00 as compensatory
damages and unrealized income of Teresa Elena, which is one-half of the amount of
P9,539,050.00, taking into consideration her status in life, and that during her
lifetime she was not only spending for herself. The latter's average expenses would
either be more or less than one-half of her gross income for the year; (3)
P100,000.00 as moral damages to assuage the family of the deceased Teresa Elena
for the loss of a love one who was charred beyond recognition; and (4) attorney's
fees of P150,000.00. As to exemplary damages, the same cannot be granted for
the reason that no one wanted this unfortunate accident to happen, which was a
costly one.

For Civil Case No. Q-45602, the herein defendants are hereby ordered, jointly and
severally, to pay the plaintiffs (1) P20,550.00 for actual damages, with interest
thereon at the legal rate until the same is paid; (2) P444,555.00 as compensatory
damages and unrealized income of the deceased Armando de los Santos, for the
same reason as the deceased Teresa Elena, who during his lifetime, Armando was
not only spending for himself; (3) P100,000.00 as moral damages to assuage the
loss of a love one who was burnt beyond recognition; and (4) P100,000.00 as
attorney's fees. As to exemplary damages, the same could not be granted for the
same reason as that in Civil Case No. Q-44498.

SO ORDERED.

After the denial of the motion for reconsideration, petitioner appealed to the CA,
and the latter ruled:

WHEREFORE, the assailed February 14, 1994 Decision of the Regional Trial Court of
Quezon City, Branch 100 is AFFIRMED, subject to modification that in Civil Case No.
Q-44498 the compensatory damages and unrealized income of deceased Teresa
Elena shall be P3,120,300.00, and in Civil Case No. Q-45602 the compensatory
damages and unrealized income of deceased Armando shall be P509,649.00.

SO ORDERED.

The subsequent motion for reconsideration was also denied. Hence, the present
petition wherein the petitioner assigned the following errors:
 ASSIGNMENT OF ERRORS

I. THE HONORABLE COURT OF APPEALS ERRED IN FINDING THE PETITIONER

MEJIA NEGLIGENT, SUCH NOT BEING SUPPORTED BY THE EVIDENCE ON RECORD.

II. THE HONORABLE COURT OF APPEALS' FINDING THAT PETITIONER FILSYN DID
NOT EXERCISE THE DUE DILIGENCE OF A GOOD FATHER OF A FAMILY IN THE
SELECTION AND SUPERVISION OF ITS EMPLOYEES IS NOT SUPPORTED BY THE
EVIDENCE ON RECORD.

III. THE DAMAGES AWARDED BY THE HONORABLE COURT OF APPEALS IS NOT IN

ACCORD WITH THE EVIDENCE ON RECORD.

The respondents filed their Comment[3] dated June 7, 2002, while the petitioner
filed its Reply[4] dated January 29, 2003. Subsequently, their respective
memoranda[5] were filed.

The petition lacks merit.

Petitioner insists that the CA was not correct in ruling that Mejia was negligent. It
argues that the said conclusion was not derived from the evidence adduced during
the trial, which, upon further analysis, makes the nature of the issue presented to
be factual.

Whether a person is negligent or not is a question of fact which this Court cannot
pass upon in a petition for review on certiorari, as its jurisdiction is limited to
reviewing errors of law.[6] As a rule, factual findings of the trial court, affirmed by
the CA, are final and conclusive and may not be reviewed on appeal. The
established exceptions are: (1) when the inference made is manifestly mistaken,
absurd or impossible; (2) when there is grave abuse of discretion; (3) when the
findings are grounded entirely on speculations, surmises or conjectures; (4) when
the judgment of the CA is based on misapprehension of facts; (5) when the findings
of fact are conflicting; (6) when the CA, in making its findings, went beyond the
issues of the case and the same is contrary to the admissions of both appellant and
appellee; (7) when the findings of fact are conclusions without citation of specific
evidence on which they are based; (8) when the CA manifestly overlooked certain
relevant facts not disputed by the parties and which, if properly considered, would
justify a different conclusion; and (9) when the findings of fact of the CA are
premised on the absence of evidence and are contradicted by the evidence on
record.[7]

Not falling under any of the exceptions enumerated above, this Court must defer to
the findings of the RTC and the CA.

Petitioner argues that the RTC admitted that De los Santos made a turn along
White Plains Road without exercising the necessary care which could have
prevented the accident from happening. It quoted the following portion of the RTC's
decision:
The Court is convinced that defendant Mejia was running real fast along EDSA when
he saw a vehicle on the opposite side suddenly turn left towards White Plains.

According to petitioner, the sudden turn of the vehicle used by the victims should
also be considered as negligence on the part of the driver of that same vehicle,
thus, mitigating, if not absolving petitioner's liability. However, the said argument
deserves scant consideration.

It was well established that Mejia was driving at a speed beyond the rate of speed
required by law, specifically Section 35 of Republic Act No. (RA) 4136.[8] Given the
circumstances, the allowed rate of speed for Mejia's vehicle was 50 kilometers per
hour, while the records show that he was driving at the speed of 70 kilometers per
hour. Under the New Civil Code,[9] 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. Apparently, in the present case,
Mejia's violation of the traffic rules does not erase the presumption that he was the
one negligent at the time of the collision. Even apart from statutory regulations as
to speed, a motorist is nevertheless expected to exercise ordinary care and drive at
a reasonable rate of speed commensurate with all the conditions
encountered[10] which will enable him to keep the vehicle under control and,
whenever necessary, to put the vehicle to a full stop to avoid injury to others using
the highway.[11][ ]To suggest that De los Santos was equally negligent based on that
sole statement of the RTC is erroneous. The entire evidence presented must be
considered as a whole. Incidentally, a close reading of the ruling of the CA would
clearly show the negligence of Mejia. A portion of the decision reads:

A closer study of the Police Accident Report, Investigation Report and the sketch of
the accident would reveal nothing but that the shuttle bus was traveling at such a
reckless speed that it collided with the car bearing the deceased. The impact was
such that the bus landed astride the car, dragged the car across the right lane of
White Plains Road, across the concrete island/flower box in the center of White
Plains Road, destroying the lamp post in the island until both vehicles landed by the
petitioner fence of Camp Aguinaldo.

From those evidence, borne out by the records, there was proof more than
preponderant to conclude that Mejia was traveling at an unlawful speed, hence, the
negligent driver. We, therefore, cannot find any error on the part of the trial court
in concluding that he (Mejia) was driving more than his claim of 70 kilometers per
hour. Significantly, the claimed speed of Mejia is still unlawful, considering that
Section 35 of RA 4136 states that the maximum allowable speed for trucks and
buses must not exceed 50 kilometers per hour. We are, therefore, unpersuaded by
the defendants-appellants' claim that it was the driver of [the] Galant Sigma who
was negligent by not observing Sections 42(d) and 43(c) of RA 4136-A. Second
sentence of Section 42 provides that the driver of any vehicle traveling at any
unlawful speed shall forfeit any right of way which he might otherwise have. A
person driving a vehicle is presumed negligent if at the time of the mishap, he was
violating a traffic regulation. The excessive speed employed by Mejia was the
proximate cause of the collision that led to the sudden death of Teresa Elena and
Armando. If the defendants-appellants truly believe that the accident was caused
by the negligence of the driver of the Galant Sigma, they should have presented
Mejia to the witness stand. Being the driver, Mejia would have been in the best
position to establish their thesis that he was negligent when the mishap happened.
Under the RULES OF EVIDENCE (Section 3[e], Rule 131), such suppression gives
rise to the presumption that his testimony would have been adverse, if presented.
It must be stressed further that Mejia left the scene, not reporting the fatal accident
to the authorities neither did he wait for the police to arrive. He only resurfaced on
the day after the incident. This is a clear transgression of Section 55 of RA 4136-A
which provides:

SEC. 55 Duty of driver in case of accident. - In the [event] that any accident should
occur as a result of the operation of a motor vehicle upon a highway, the driver
shall stop immediately, and, if requested by any person present, shall show his
driver's license, give his true name and address and also the true name and
address of the owner of the motor vehicle.

No driver of a motor vehicle concerned in a vehicular accident shall leave the scene
of the accident without aiding the victim, except under any of the following
circumstances:

1. If he is in imminent danger of being seriously harmed by any

person or persons by reason of the accident;
2. If he reports the accident to the nearest officer of the law; or
3. If he has to summon a physician or nurse to aid the victim.

xxxx
Equally untenable is the defendants-appellants contention that it would be
impossible for the shuttle bus which was traveling at 70 kilometers per hour to
stop. In view of this assertion, we quote with favor the statement of Justice
Feliciano in the Kapalaran case that the law seeks to stop and prevent the slaughter
and maiming of people (whether passenger or not) and the destruction of property
(whether freight or not) on our highways by buses, the very size and power of
which seem often to inflame the minds of the drivers. To our mind, if a vehicle was
travelling in an allowable speed, its driver would not have a difficulty in applying the
brakes.

Anent the second issue raised, petitioner insists that it exercised the due diligence
of a good father of a family in the selection and supervision of its employees. The
RTC and the CA find otherwise.

Under Article 2180[12] of the New Civil Code, when an injury is caused by the
negligence of the employee, there instantly arises a presumption of law that there
was negligence on the part of the master or employer either in the selection of the
servant or employee, or in supervision over him after selection or both. The liability
of the employer under Article 2180 is direct and immediate; it is not conditioned
upon prior recourse against the negligent employee and a prior showing of the
insolvency of such employee. Therefore, it is incumbent upon the private
respondents (in this case, the petitioner) to prove that they exercised the diligence
of a good father of a family in the selection and supervision of their employee.[13]

Petitioner asserts that it had submitted and presented during trial, numerous
documents in support of its claim that it had exercised the proper diligence in both
the selection and supervision of its employees. Among those proofs are documents
showing Mejia's proficiency and physical examinations, as well as his NBI
clearances. The Employee Staff Head of the Human Resource Division of the
petitioner also testified that Mejia was constantly under supervision and was given
daily operational briefings. Nevertheless, the RTC and the CA were correct in finding
those pieces of evidence presented by the petitioner insufficient.

In Manliclic v. Calaunan,[14] this Court ruled that:

In the selection of prospective employees, employers are required to examine them

as to their qualifications, experience and service records. In the supervision of
employees, the employer must formulate standard operating procedures, monitor
their implementation and impose disciplinary measures for the breach thereof. To
fend off vicarious liability, employers must submit concrete proof, including
documentary evidence, that they complied with everything that was incumbent on
them.

In Metro Manila Transit Corporation v. Court of Appeals, it was explained that:

Due diligence in the supervision of employees on the other hand, includes the
formulation of suitable rules and regulations for the guidance of employees and the
issuance of proper instructions intended for the protection of the public and persons
with whom the employer has relations through his or its employees and the
imposition of necessary disciplinary measures upon employees in case of breach or
as may be warranted to ensure the performance of acts indispensable to the
business of and beneficial to their employer. To this, we add that actual
implementation and monitoring of consistent compliance with said rules should be
the constant concern of the employer, acting through dependable supervisors who
should regularly report on their supervisory functions.

In order that the defense of due diligence in the selection and supervision of
employees may be deemed sufficient and plausible, it is not enough to emptily
invoke the existence of said company guidelines and policies on hiring and
supervision. As the negligence of the employee gives rise to the presumption of
negligence on the part of the employer, the latter has the burden of proving that it
has been diligent not only in the selection of employees but also in the actual
supervision of their work. The mere allegation of the existence of hiring procedures
and supervisory policies, without anything more, is decidedly not sufficient to
overcome such presumption.

We emphatically reiterate our holding, as a warning to all employers, that "the

formulation of various company policies on safety without showing that they were
being complied with is not sufficient to exempt petitioner from liability arising from
negligence of its employees. It is incumbent upon petitioner to show that in
recruiting and employing the erring driver the recruitment procedures and company
policies on efficiency and safety were followed." x x x.[15]

Applying the above ruling, the CA, therefore, committed no error in finding that the
evidence presented by petitioner is wanting. Thus, the CA ruled:

In the present case, Filsyn merely presented evidence on the alleged care it took in
the selection or hiring of Mejia way back in 1974 or ten years before the fatal
accident. Neither did Filsyn present any proof of the existence of the rules and
regulations governing the conduct of its employees. It is significant to note that in
employing Mejia, who is not a high school graduate, Filsyn waived its long-standing
policy requirement of hiring only high school graduates. It insufficiently failed to
explain the reason for such waiver other than their allegation of Mejia's maturity
and skill for the job.

As revealed by the testimony of Rolando Landicho, Filsyn admitted that their shuttle
buses were used to ferry Filsyn's employees for three shifts. It failed to show
whether or not Mejia was on duty driving buses for all three shifts. On the other
hand, the trial court found that Mejia, by the different shifts would have been on
the job for more than eight hours. Fylsin did not even sufficiently prove that it
exercised the required supervision of Mejia by ensuring rest periods, particularly for
its night shift drivers who are working on a time when most of us are usually taking
rest. As correctly argued by the plaintiffs-appellees, this is significant because the
accident happened at 11:30 p.m., when the shuttle bus was under the control of a
driver having no passenger at all. Despite, the lateness of the hour and the
darkness of the surrounding area, the bus was travelling at a speed of 70
kilometers per hour.

In view of the absence of sufficient proof of its exercise of due diligence, Filsyn
cannot escape its solidary liability as the owner of the wayward bus and the
employer of the negligent driver of the wayward bus. x x x

As to the amount of the damages awarded by the CA, petitioner claims that it is not
in accord with the evidence on record. It explained that the amounts used in
computing for compensatory damages were based mainly on the assertions of the
respondents as to the amount of salary being received by the two deceased at the
time of their deaths.

This Court, in its ruling,[16] expounded on the nature of compensatory damages,

thus:

Under Article 2199 of the New Civil Code, actual damages include all the natural
and probable consequences of the act or omission complained of, classified as one
for the loss of what a person already possesses (daño emergente) and the other,
for the failure to receive, as a benefit, that which would have pertained to him
(lucro cesante). As expostulated by the Court in PNOC Shipping and Transport
Corporation v. Court of Appeals:[17]

Under Article 2199 of the Civil Code, actual or compensatory damages are those
awarded in satisfaction of, or in recompense for, loss or injury sustained. They
proceed from a sense of natural justice and are designed to repair the wrong that
has been done, to compensate for the injury inflicted and not to impose a penalty.
In actions based on torts or quasi-delicts, actual damages include all the natural
and probable consequences of the act or omission complained of. There are two
kinds of actual or compensatory damages: one is the loss of what a person already
possesses (daño emergente), and the other is the failure to receive as a benefit
that which would have pertained to him (lucro cesante).[18]

The burden of proof is on the party who would be defeated if no evidence would be
presented on either side. The burden is to establish one's case by a preponderance
of evidence which means that the evidence, as a whole, adduced by one side, is
superior to that of the other. Actual damages are not presumed. The claimant must
prove the actual amount of loss with a reasonable degree of certainty premised
upon competent proof and on the best evidence obtainable. Specific facts that could
afford a basis for measuring whatever compensatory or actual damages are borne
must be pointed out. Actual damages cannot be anchored on mere surmises,
speculations or conjectures. As the Court declared:

As stated at the outset, to enable an injured party to recover actual or

compensatory damages, he is required to prove the actual amount of loss with
reasonable degree of certainty premised upon competent proof and on the best
evidence available. The burden of proof is on the party who would be defeated if no
evidence would be presented on either side. He must establish his case by a
preponderance of evidence which means that the evidence, as a whole, adduced by
one side is superior to that of the other. In other words, damages cannot be
presumed and courts, in making an award, must point out specific facts that could
afford a basis for measuring whatever compensatory or actual damages are
borne.[19]

The records show that the CA did not err in awarding the said amounts, nor was
there any mistake in its computation. The respondents were able to establish their
case by a preponderance of evidence. However, the petitioner is correct when it
stated that the award of P100,000.00 as moral damages is excessive.
Jurisprudence has set the amount to P50,000.00.[20]

WHEREFORE, the Petition for Review is hereby DENIED. Consequently, the

Decision of the Court of Appeals, dated August 15, 2001, is hereby AFFIRMED with
the MODIFICATION that the moral damages be reduced to P50,000.00.

SO ORDERED.
 G.R. No. 172682, July 27, 2016

SULPICIO LINES, INC., Petitioner, v. NAPOLEON SESANTE, NOW

SUBSTITUTED BY MARIBEL ATILANO, KRISTEN MARIE, CHRISTIAN IONE,
KENNETH KERRN AND KARISNA KATE, ALL SURNAMED
SESANTE, Respondent.

DECISION

BERSAMIN, J.:

Moral damages are meant to enable the injured party to obtain the means,
diversions or amusements in order to alleviate the moral suffering. Exemplary
damages are designed to permit the courts to reshape behavior that is socially
deleterious in its consequence by creating negative incentives or deterrents against
such behavior.

The Case

This appeal seeks to undo and reverse the adverse decision promulgated on June
27, 2005,1 whereby the Court of Appeals (CA) affirmed with modification the
judgment of the Regional Trial Court (RTC), Branch 91, in Quezon City holding the
petitioner liable to pay temperate and moral damages due to breach of contract of
carriage.2chan roble slaw

Antecedents

On September 18, 1998, at around 12:55 p.m., the M/V Princess of the Orient, a
passenger vessel owned and operated by the petitioner, sank near Fortune Island in
Batangas. Of the 388 recorded passengers, 150 were lost.3 Napoleon Sesante, then
a member of the Philippine National Police (PNP) and a lawyer, was one of the
passengers who survived the sinking. He sued the petitioner for breach of contract
and damages.4 cha nrob leslaw

Sesante alleged in his complaint that the M/V Princess of the Orient left the Port of
Manila while Metro Manila was experiencing stormy weather; that at around 11:00
p.m., he had noticed the vessel listing starboard, so he had gone to the uppermost
deck where he witnessed the strong winds and big waves pounding the vessel; that
at the same time, he had seen how the passengers had been panicking, crying for
help and frantically scrambling for life jackets in the absence of the vessel's officers
and crew; that sensing danger, he had called a certain Vency Ceballos through his
cellphone to request him to inform the proper authorities of the situation; that
thereafter, big waves had rocked the vessel, tossing him to the floor where he was
pinned by a long steel bar; that he had freed himself only after another wave had
hit the vessel;5 that he had managed to stay afloat after the vessel had sunk, and
had been carried by the waves to the coastline of Cavite and Batangas until he had
been rescued; that he had suffered tremendous hunger, thirst, pain, fear, shock,
serious anxiety and mental anguish; that he had sustained injuries,6 and had lost
money, jewelry, important documents, police uniforms and the .45 caliber pistol
issued to him by the PNP; and that because it had committed bad faith in allowing
the vessel to sail despite the storm signal, the petitioner should pay him actual and
moral damages of P500,000.00 and P1,000,000.00, respectively.7 cha nrob leslaw

In its defense, the petitioner insisted on the seaworthiness of the M/V Princess of
the Orient due to its having been cleared to sail from the Port of Manila by the
proper authorities; that the sinking had been due to force majeure; that it had not
been negligent; and that its officers and crew had also not been negligent because
they had made preparations to abandon the vessel because they had launched life
rafts and had provided the passengers assistance in that regard.8 chan robles law

Decision of the RTC

On October 12, 2001, the RTC rendered its judgment in favor of the
respondent,9 holding as follows: ChanRobles Vi rtua lawlib rary

WHEREFORE, judgment is hereby rendered in favor of plaintiff Napoleon Sesante

and against defendant Sulpicio Lines, Inc., ordering said defendant to pay plaintiff:

1. Temperate damages in the amount of P400,000.00;

2. Moral damages in the amount of One Million Pesos (P1,000,000.00);

3. Costs of suit.

SO ORDERED.10 chanroble svirtual lawlib rary

The RTC observed that the petitioner, being negligent, was liable to Sesante
pursuant to Articles 1739 and 1759 of the Civil Code; that the petitioner had not
established its due diligence in the selection and supervision of the vessel crew;
that the ship officers had failed to inspect the stowage of cargoes despite being
aware of the storm signal; that the officers and crew of the vessel had not
immediately sent a distress signal to the Philippine Coast Guard; that the ship
captain had not called for then "abandon ship" protocol; and that based on the
report of the Board of Marine Inquiry (BMI), the erroneous maneuvering of the
vessel by the captain during the extreme weather condition had been the
immediate and proximate cause of the sinking.

The petitioner sought reconsideration, but the RTC only partly granted its motion by
reducing the temperate damages from P500,000.00 to P300,000.00.11 chan roble slaw

Dissatisfied, the petitioner appealed.12 It was pending the appeal in the CA when
Sesante passed away. He was substituted by his heirs.13 c hanro bles law

Judgment of the CA

On June 27, 2005, the CA promulgated its assailed decision. It lowered the
temperate damages to P120,000.00, which approximated the cost of Sesante's lost
personal belongings; and held that despite the seaworthiness of the vessel, the
petitioner remained civilly liable because its officers and crew had been negligent in
performing their duties.14 chan roble slaw

Sttill aggrieved, Sulpicio Lines moved for reconsideration, but the CA denied the
motion.15chan roble slaw

Hence, this appeal.

Issues

The petitioner attributes the following errors to the CA, to wit: ChanRobles Vi rtua lawlib rary

THE ASSAILED DECISION ERRED IN SUSTAINING THE AWARD OF MORAL

DAMAGES, AS THE INSTANT CASE IS FOR ALLEGED PERSONAL INJURIES
PREDICATED ON BREACH OF CONTRACT OF CARRIAGE, AND THERE BEING NO
PROOF OF BAD FAITH ON THE PART OF SULPICIO

II

THE ASSAILED DECISION ERRED IN SUSTAINING THE AMOUNT OF MORAL

DAMAGES AWARDED, THE SAME BEING UNREASONABLE, EXCESSIVE AND
UNCONSCIONABLE, AND TRANSLATES TO UNJUST ENRICHMENT AGAINST
SULPICIO

III

THE ASSAILED DECISION ERRED IN SUSTAINING THE AWARD OF TEMPERATE

DAMAGES AS THE SAME CANNOT SUBSTITUTE FOR A FAILED CLAIM FOR ACTUAL
DAMAGES, THERE BEING NO COMPETENT PROOF TO WARRANT SAID AWARD

IV

THE AWARD OF TEMPERATE DAMAGES IS UNTENABLE AS THE REQUISITE NOTICE

UNDER THE LAW WAS NOT GIVEN TO SULPICIO IN ORDER TO HOLD IT LIABLE FOR
THE ALLEGED LOSS OF SESANTE'S PERSONAL BELONGINGS

THE ASSAILED DECISION ERRED IN SUBSTITUTING THE HEIRS OF RESPONDENT

SESANTE IN THE INSTANT CASE, THE SAME BEING A PERSONAL ACTION WHICH
DOES NOT SURVIVE

VI

THE ASSAILED DECISION ERRED IN APPLYING ARTICLE 1759 OF THE NEW CIVIL
CODE AGAINST SULPICIO SANS A CLEAR-CUT FINDING OF SULPICIO'S BAD FAITH
IN THE INCIDENT16 chanrob lesvi rtual lawlib rary
In other words, to be resolved are the following, namely: (1) Is the complaint for
breach of contract and damages a personal action that does not survive the death
of the plaintiff?; (2) Is the petitioner liable for damages under Article 1759 of
the Civil Code?; and (3) Is there sufficient basis for awarding moral and temperate
damages?

Ruling of the Court

The appeal lacks merit.

An action for breach of contract of carriage survives the death of the

plaintiff

The petitioner urges that Sesante's complaint for damages was purely personal and
cannot be transferred to his heirs upon his death. Hence, the complaint should be
dismissed because the death of the plaintiff abates a personal action.

The petitioner's urging is unwarranted.

Section 16, Rule 3 of the Rules of Court lays down the proper procedure in the
event of the death of a litigant, viz.:
ChanRobles Vi rtua lawlib rary

Section 16. Death of party; duty of counsel. - Whenever a party to a pending

action dies, and the claim is not thereby extinguished, it shall be the duty of
his counsel to inform the court within thirty (30) days after such death of the fact
thereof, and to give the name and address of his legal representative or
representatives. Failure of counsel to comply with his duty shall be a ground for
disciplinary action.

The heirs of the deceased may be allowed to be substituted for the

deceased, without requiring the appointment of an executor or administrator and
the court may appoint a guardian ad litem for the minor heirs.

xxxx
Substitution by the heirs is not a matter of jurisdiction, but a requirement of due
process.17 It protects the right of due process belonging to any party, that in the
event of death the deceased litigant continues to be protected and properly
represented in the suit through the duly appointed legal representative of his
estate.18
chanro bleslaw

The application of the rule on substitution depends on whether or not the action
survives the death of the litigant. Section 1, Rule 87 of the Rules of
Court enumerates the following actions that survive the death of a party, namely:
(1) recovery of real or personal property, or an interest from the estate; (2)
enforcement of liens on the estate; and (3) recovery of damages for an injury to
person or property. On the one hand, Section 5, Rule 86 of the Rules of Court lists
the actions abated by death as including: (1) claims for funeral expenses and those
for the last sickness of the decedent; (2) judgments for money; and (3) all claims
for money against the deceased, arising from contract, express or implied.

A contract of carriage generates a relation attended with public duty, neglect or

malfeasance of the carrier's employees and gives ground for an action for
damages.19 Sesante's claim against the petitioner involved his personal injury
caused by the breach of the contract of carriage. Pursuant to the aforecited rules,
the complaint survived his death, and could be continued by his heirs following the
rule on substitution.

II

The petitioner is liable for breach of contract of carriage

The petitioner submits that an action for damages based on breach of contract of
carriage under Article 1759 of the Civil Code should be read in conjunction with
Article 2201 of the same code; that although Article 1759 only provides for a
presumption of negligence, it does not envision automatic liability; and that it was
not guilty of bad faith considering that the sinking of M/V Princess of the Orient had
been due to a fortuitous event, an exempting circumstance under Article 1174 of
the Civil Code.

The submission has no substance.

Article 1759 of the Civil Code does not establish a presumption of negligence
because it explicitly makes the common carrier liable in the event of death or injury
to passengers due to the negligence or fault of the common carrier's employees. It
reads:ChanRoblesVi rtua lawlib rary

Article 1759. Common carriers are liable for the death or injuries to
passengers through the negligence or willful acts of the former's
employees, although such employees may have acted beyond the scope of their
authority or in violation of the orders of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised
all the diligence of a good father of a family in the selection and supervision of their
employees.
The liability of common carriers under Article 1759 is demanded by the duty of
extraordinary diligence required of common carriers in safely carrying their
passengers.20 chanroble slaw

On the other hand, Article 1756 of the Civil Code lays down the presumption of
negligence against the common carrier in the event of death or injury of its
passenger, viz.: ChanRobles Vi rtua lawlib rary

Article 1756. In case of death of or injuries to passengers, common carriers are

presumed to have been at fault or to have acted negligently, unless they prove that
they observed extraordinary diligence as prescribed in Articles 1733 and 1755.
Clearly, the trial court is not required to make an express finding of the common
carrier's fault or negligence.21 Even the mere proof of injury relieves the passengers
from establishing the fault or negligence of the carrier or its employees.22 The
presumption of negligence applies so long as there is evidence showing that: (a) a
contract exists between the passenger and the common carrier; and (b) the injury
or death took place during the existence of such contract.23 In such event, the
burden shifts to the common carrier to prove its observance of extraordinary
diligence, and that an unforeseen event or force majeure had caused the injury.24 chan roble slaw

Sesante sustained injuries due to the buffeting by the waves and consequent
sinking of M/V Princess of the Orient where he was a passenger. To exculpate itself
from liability, the common carrier vouched for the seaworthiness of M/V Princess of
the Orient, and referred to the BMI report to the effect that the severe weather
condition - a force majeure - had brought about the sinking of the vessel.

The petitioner was directly liable to Sesante and his heirs.

A common carrier may be relieved of any liability arising from a fortuitous event
pursuant to Article 117425 of the Civil Code. But while it may free a common
c ralawred

carrier from liability, the provision still requires exclusion of human agency from the
cause of injury or loss.26 Else stated, for a common carrier to be absolved from
liability in case of force majeure, it is not enough that the accident was caused by a
fortuitous event. The common carrier must still prove that it did not contribute to
the occurrence of the incident due to its own or its employees' negligence.27 We
explained in Schmitz Transport & Brokerage Corporation v. Transport Venture,
Inc.,28 as follows:
ChanRoblesVirtualawl ibra ry

In order to be considered a fortuitous event, however, (1) the cause of the

unforeseen and unexpected occurrence, or the failure of the debtor to comply with
his obligation, must be independent of human will; (2) it must be impossible to
foresee the event which constitute the caso fortuito, or if it can be foreseen it must
be impossible to avoid; (3) the occurrence must be such as to render it impossible
for the debtor to fulfill his obligation in any manner; and (4) the obligor must be
free from any participation in the aggravation of the injury resulting to the creditor.
[T]he principle embodied in the act of God doctrine strictly requires that the act
must be occasioned solely by the violence of nature. Human intervention is
to be excluded from creating or entering into the cause of the mischief.
When the effect is found to be in part the result of the participation of man,
whether due to his active intervention or neglect or failure to act, the
whole occurrence is then humanized and removed from the rules
applicable to the acts of God.29 (bold underscoring supplied for emphasis)
The petitioner has attributed the sinking of the vessel to the storm notwithstanding
its position on the seaworthiness of M/V Princess of the Orient. Yet, the findings of
the BMI directly contradicted the petitioner's attribution, as follows:
ChanRoblesVi rt ualawlib ra ry

7. The Immediate and the Proximate Cause of the Sinking

The Captain's erroneous maneuvers of the M/V Princess of the Orient minutes
before she sunk [sic] had caused the accident. It should be noted that during the
first two hours when the ship left North Harbor, she was navigating smoothly
towards Limbones Point. During the same period, the ship was only subjected to
the normal weather stress prevailing at the time. She was then inside Manila Bar.
The waves were observed to be relatively small to endanger the safety of the ship.
It was only when the MV Princess of the Orient had cleared Limbones Pt. while
navigating towards the direction of the Fortune Island when this agonizing
misfortune struck the ship.

Initially, a list of three degrees was observed. The listing of the ship to her portside
had continuously increased. It was at this point that the captain had misjudged the
situation. While the ship continuously listed to her portside and was battered by big
waves, strong southwesterly winds, prudent judgement [sic] would dictate that the
Captain should have considerably reduced the ship's speed. He could have
immediately ordered the Chief Engineer to slacken down the speed. Meanwhile,
the winds and waves continuously hit the ship on her starboard side. The waves
were at least seven to eight meters in height and the wind velocity was a[t] 25
knots. The MV Princess of the Orient being a close-type ship (seven decks, wide and
high superstructure) was vulnerable and exposed to the howling winds and
ravaging seas. Because of the excessive movement, the solid and liquid cargo
below the decks must have shifted its weight to port, which could have contributed
to the tilted position of the ship.

Minutes later, the Captain finally ordered to reduce the speed of the ship to 14
knots. At the same time, he ordered to put ballast water to the starboard-heeling
tank to arrest the continuous listing of the ship. This was an exercise in futility
because the ship was already listing between 15 to 20 degrees to her portside. The
ship had almost reached the maximum angle of her loll. At this stage, she was
about to lose her stability.

Despite this critical situation, the Captain executed several starboard maneuvers.
Steering the course of the Princess to starboard had greatly added to her tilting. In
the open seas, with a fast speed of 14 knots, advance maneuvers such as this
would tend to bring the body of the ship in the opposite side. In navigational terms,
this movement is described as the centripetal force. This force is produced by the
water acting on the side of the ship away from the center of the turn. The force is
considered to act at the center of lateral resistance which, in this case, is the
centroid of the underwater area of the ship's side away from the center of the turn.
In the case of the Princess, when the Captain maneuvered her to starboard, her
body shifted its weight to port. Being already inclined to an angle of 15 degrees,
coupled with the instantaneous movement of the ship, the cargoes below deck
could have completely shifted its position and weight towards portside. By this
time, the ship being ravaged simultaneously by ravaging waves and howling winds
on her starboard side, finally lost her grip.30
cha nroble svirtual lawlib rary

Even assuming the seaworthiness of the MA/ Princess of the Orient, the petitioner
could not escape liability considering that, as borne out by the aforequoted findings
of the BMI, the immediate and proximate cause of the sinking of the vessel had
been the gross negligence of its captain in maneuvering the vessel.

The Court also notes that Metro Manila was experiencing Storm Signal No. 1 during
the time of the sinking.31 The BMI observed that a vessel like the M/V Princess of
the Orient, which had a volume of 13.734 gross tons, should have been capable of
withstanding a Storm Signal No. 1 considering that the responding fishing boats of
less than 500 gross tons had been able to weather through the same waves and
winds to go to the succor of the sinking vessel and had actually rescued several of
the latter's distressed passengers.32 chanrob leslaw

III

The award of moral damages and temperate damages is proper

The petitioner argues that moral damages could be meted against a common
carrier only in the following instances, to wit: (1) in the situations enumerated by
Article 2201 of the Civil Code; (2) in cases of the death of a passenger; or (3)where
there was bad faith on the part of the common carrier. It contends that none of
these instances obtained herein; hence, the award should be deleted.

We agree with the petitioner that moral damages may be recovered in an action
upon breach of contract of carriage only when: (a) death of a passenger results, or
(b) it is proved that the carrier was guilty of fraud and bad faith, even if death does
not result.33 However, moral damages may be awarded if the contractual breach is
found to be wanton and deliberately injurious, or if the one responsible acted
fraudulently or with malice or bad faith.34 cha nrob lesl aw

The CA enumerated the negligent acts committed by the officers and crew of M/V
Princess of the Orient, viz.: ChanRob les Vi rtualaw lib rary

x x x. [W]hile this Court yields to the findings of the said investigation report, yet it
should be observed that what was complied with by Sulpicio Lines were only the
basic and minimal safety standards which would qualify the vessel as seaworthy. In
the same report however it also revealed that the immediate and proximate cause
of the sinking of the M/V Princess of the Orient was brought by the following:
erroneous maneuvering command of Captain Esrum Mahilum and due to the
weather condition prevailing at the time of the tragedy. There is no doubt that
under the circumstances the crew of the vessel were negligent in manning it. In
fact this was clearly established by the investigation of the Board of Marine Inquiry
where it was found that: ChanRobles Virtualawl ibra ry

The Chief Mate, when interviewed under oath, had attested that he was not able to
make stability calculation of the ship vis-a-vis her cargo. He did not even know the
metacentric height (GM) of the ship whether it be positive or negative.

As cargo officer of the ship, he failed to prepare a detailed report of the ship's cargo
stowage plan.
He likewise failed to conduct the soundings (measurement) of the ballast tanks
before the ship departed from port. He readily presumed that the ship was full of
ballast since the ship was fully ballasted when she left Cebu for Manila on 16
September 1998 and had never discharge[d] its contents since that time.

Being the officer-in-charge for emergency situation (sic) like this, he failed to
execute and supervise the actual abandonship (sic) procedure. There was no
announcement at the public address system of abandonship (sic), no orderly
distribution of life jackets and no orderly launching of life rafts. The witnesses have
confirmed this finding on their sworn statements.

There was miscalculation in judgment on the part of the Captain when he

erroneously navigated the ship at her last crucial moment. x x x

To aggravate his case, the Captain, having full command and responsibility of the
MV Princess of the Orient, had failed to ensure the proper execution of the actual
abandoning of the ship.

The deck and engine officers (Second Mate, Third Mate, Chief Engineers, Second
Engineer, Third Engineer and Fourth Engineer), being in charge of their respective
abandonship (sic) post, failed to supervise the crew and passengers in the proper
execution of abandonship (sic) procedure.

The Radio Officer (spark) failed to send the SOS message in the internationally
accepted communication network (VHF Channel 16). Instead, he used the Single
Side Band (SSB) radio in informing the company about the emergency situation. x
x x x35
chan roble svirtual lawlib rary

The aforestated negligent acts of the officers and crew of M/V Princess of the Orient
could not be ignored in view of the extraordinary duty of the common carrier to
ensure the safety of the passengers. The totality of the negligence by the officers
and crew of M/V Princess of the Orient, coupled with the seeming indifference of the
petitioner to render assistance to Sesante,36 warranted the award of moral
damages.

While there is no hard-and-fast rule in determining what is a fair and reasonable

amount of moral damages, the discretion to make the determination is lodged in
the trial court with the limitation that the amount should not be palpably and
scandalously excessive. The trial court then bears in mind that moral damages are
not intended to impose a penalty on the wrongdoer, or to enrich the plaintiff at the
expense of the defendant.37 The amount of the moral damages must always
reasonably approximate the extent of injury and be proportional to the wrong
committed.38 chan roble slaw

The Court recognizes the mental anguish, agony and pain suffered by Sesante who
fought to survive in the midst of the raging waves of the sea while facing the
immediate prospect of losing his life. His claim for moral and economic vindication
is a bitter remnant of that most infamous tragedy that left hundreds of families
broken in its wake. The anguish and moral sufferings he sustained after surviving
the tragedy would always include the memory of facing the prospect of his death
from drowning, or dehydration, or being preyed upon by sharks. Based on the
established circumstances, his survival could only have been a miracle wrought by
God's grace, by which he was guided in his desperate swim for the safety of the
shore. But even with the glory of survival, he still had to grapple with not just the
memory of having come face to face with almost certain death, but also with having
to answer to the instinctive guilt for the rest of his days of being chosen to live
among the many who perished in the tragedy.39 c hanro bleslaw

While the anguish, anxiety, pain and stress experienced by Sesante during and
after the sinking cannot be quantified, the moral damages to be awarded should at
least approximate the reparation of all the consequences of the petitioner's
negligence. With moral damages being meant to enable the injured party to obtain
the means, diversions or amusements in order to alleviate his moral and physical
sufferings,40 the Court is called upon to ensure that proper recompense be allowed
to him, through his heirs. For this purpose, the amount of P1,000,000.00, as
granted by the RTC and affirmed by the CA, is maintained.

The petitioner contends that its liability for the loss of Sesante's personal
belongings should conform with Article 1754, in relation to Articles 1998, 2000 to
2003 of the Civil Code, which provide: ChanRobles Vi rtualaw lib rary

Article 1754. The provisions of Articles 1733 to 1753 shall apply to the passenger's
baggage which is not in his personal custody or in that of his employees. As to
other baggage, the rules in Articles 1998 and 2000 to 2003 concerning the
responsibility of hotel-keepers shall be applicable.

xxxx

Article 1998. The deposit of effects made by travellers in hotels or inns shall also be
regarded as necessary. The keepers of hotels or inns shall be responsible for them
as depositaries, provided that notice was given to them, or to their employees, of
the effects brought by the guests and that, on the part of the latter, they take the
precautions which said hotel-keepers or their substitutes advised relative to the
care and vigilance of their effects.

xxxx

Article 2000. The responsibility referred to in the two preceding articles shall
include the loss of, or injury to the personal property of the guests caused by the
servants or employees of the keepers of hotels or inns as well as by strangers; but
not that which may proceed from any force majeure. The fact that travellers are
constrained to rely on the vigilance of the keeper of the hotel or inn shall be
considered in determining the degree of care required of him.

Article 2001. The act of a thief or robber, who has entered the hotel is not
deemed force majeure, unless it is done with the use of arms or through an
irresistible force.

Article 2002. The hotel-keeper is not liable for compensation if the loss is due to the
acts of the guest, his family, servants or visitors, or if the loss arises from the
character of the things brought into the hotel.

Article 2003. The hotel-keeper cannot free himself from responsibility by posting
notices to the effect that he is not liable for the articles brought by the guest. Any
stipulation to the contrary between the hotel-keeper and the guest whereby the
responsibility of the former as set forth in Articles 1998 to 2001 is suppressed or
diminished shall be void.
The petitioner denies liability because Sesante's belongings had remained in his
custody all throughout the voyage until the sinking, and he had not notified the
petitioner or its employees about such belongings. Hence, absent such notice,
liability did not attach to the petitioner.

Is notification required before the common carrier becomes liable for lost
belongings that remained in the custody of the passenger?

We answer in the negative.

The rule that the common carrier is always responsible for the passenger's baggage
during the voyage needs to be emphasized. Article 1754 of the Civil Code does not
exempt the common carrier from liability in case of loss, but only highlights the
degree of care required of it depending on who has the custody of the belongings.
Hence, the law requires the common carrier to observe the same diligence as the
hotel keepers in case the baggage remains with the passenger; otherwise,
extraordinary diligence must be exercised.41 Furthermore, the liability of the
common carrier attaches even if the loss or damage to the belongings resulted from
the acts of the common carrier's employees, the only exception being where such
loss or damages is due to force majeure.42 chanrobles law

In YHT Realty Corporation v. Court of Appeals,43 we declared the actual delivery of

the goods to the innkeepers or their employees as unnecessary before liability could
attach to the hotelkeepers in the event of loss of personal belongings of their
guests considering that the personal effects were inside the hotel or inn because
the hotelkeeper shall remain accountable.44 Accordingly, actual notification was not
necessary to render the petitioner as the common carrier liable for the lost personal
belongings of Sesante. By allowing him to board the vessel with his belongings
without any protest, the petitioner became sufficiently notified of such belongings.
So long as the belongings were brought inside the premises of the vessel, the
petitioner was thereby effectively notified and consequently duty-bound to observe
the required diligence in ensuring the safety of the belongings during the voyage.
Applying Article 2000 of the Civil Code, the petitioner assumed the liability for loss
of the belongings caused by the negligence of its officers or crew. In view of our
finding that the negligence of the officers and crew of the petitioner was the
immediate and proximate cause of the sinking of the M/V Princess of the Orient, its
liability for Sesante's lost personal belongings was beyond question.

The petitioner claims that temperate damages were erroneously awarded because
Sesante had not proved pecuniary loss; and that the CA merely relied on his self-
serving testimony.

The award of temperate damages was proper.

Temperate damages may be recovered when some pecuniary loss has been
suffered but the amount cannot, from the nature of the case, be proven with
certainty.45 Article 222446 of the Civil Code expressly authorizes the courts to award
temperate damages despite the lack of certain proof of actual damages.47 chan roble slaw

Indubitably, Sesante suffered some pecuniary loss from the sinking of the vessel,
but the value of the loss could not be established with certainty. The CA, which can
try facts and appreciate evidence, pegged the value of the lost belongings as
itemized in the police report at P120,000.00. The valuation approximated the costs
of the lost belongings. In that context, the valuation of P120,000.00 is correct, but
to be regarded as temperate damages.

In fine, the petitioner, as a common carrier, was required to observe extraordinary

diligence in ensuring the safety of its passengers and their personal belongings. It
being found herein short of the required diligence rendered it liable for the resulting
injuries and damages sustained by Sesante as one of its passengers.

Should the petitioner be further held liable for exemplary damages?

In contracts and quasi-contracts, the Court has the discretion to award exemplary
damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner.48 Indeed, exemplary damages cannot be recovered as a matter
of right, and it is left to the court to decide whether or not to award them.49 In
consideration of these legal premises for the exercise of the judicial discretion to
grant or deny exemplary damages in contracts and quasi-contracts against a
defendant who acted in a wanton, fraudulent,' reckless, oppressive, or malevolent
manner, the Court hereby awards exemplary damages to Sesante.

First of all, exemplary damages did not have to be specifically pleaded or proved,
because the courts had the discretion to award them for as long as the evidence so
warranted. In Marchan v. Mendoza,50 the Court has relevantly discoursed: ChanRoblesVi rt ualawlib ra ry

x x x. It is argued that this Court is without jurisdiction to adjudicate this

exemplary damages since there was no allegation nor prayer, nor proof,
nor counterclaim of error for the same by the appellees. It is to be
observed however, that in the complaint, plaintiffs "prayed for such other
and further relief as this Court may deem just and equitable." Now, since
the body of the complaint sought to recover damages against the
defendant-carrier wherein plaintiffs prayed for indemnification for the
damages they suffered as a result of the negligence of said Silverio
Marchan who is appellant's employee; and since exemplary damages is
intimately connected with general damages, plaintiffs may not be expected
to single out by express term the kind of damages they are trying to
recover against the defendant's carrier. Suffice it to state that when
plaintiffs prayed in their complaint for such other relief and remedies that
may be availed of under the premises, in effect, therefore, the court is
called upon to exercise and use its discretion whether the imposition of
punitive or exemplary damages even though not expressly prayed or
pleaded in the plaintiffs' complaint.
x x x It further appears that the amount of exemplary damages need not be
proved, because its determination depends upon the amount of
compensatory damages that may be awarded to the claimant. If the
amount of exemplary damages need not be proved, it need not also be
alleged, and the reason is obvious because it is merely incidental or
dependent upon what the court may award as compensatory damages.
Unless and until this premise is determined and established, what may be
claimed as exemplary damages would amount to a mere surmise or
speculation. It follows as a necessary consequence that the amount of
exemplary damages need not be pleaded in the complaint because the
same cannot be predetermined. One can merely ask that it be determined
by the court if in the use of its discretion the same is warranted by the
evidence, and this is just what appellee has done. (Bold underscoring supplied
for emphasis)
And, secondly, exemplary damages are designed by our civil law to "permit the
courts to reshape behavior that is socially deleterious in its consequence by
creating negative incentives or deterrents against such behavior."51 The nature and
purpose for this kind of damages have been well-stated in People v. Dalisay,52 to
wit:
ChanRob les Virtualawl ibra ry

Also known as 'punitive' or 'vindictive' damages, exemplary or corrective

damages are intended to serve as a deterrent to serious wrong doings, and
as a vindication of undue sufferings and wanton invasion of the rights of
an injured or a punishment for those guilty of outrageous conduct. These
terms are generally, but not always, used interchangeably. In common law, there is
preference in the use of exemplary damages when the award is to account for
injury to feelings and for the sense of indignity and humiliation suffered by a person
as a result of an injury that has been maliciously and wantonly inflicted, the theory
being that there should be compensation for the hurt caused by the highly
reprehensible conduct of the defendant - associated with such circumstances as
willfulness, wantonness, malice, gross negligence or recklessness, oppression,
insult or fraud or gross fraud - that intensifies the injury. The terms punitive or
vindictive damages are often used to refer to those species of damages that may be
awarded against a person to punish him for his outrageous conduct. In either
case, these damages are intended in good measure to deter the wrongdoer
and others like him from similar conduct in the future. (Bold underscoring
supplied for emphasis)
The BMI found that the "erroneous maneuvers" during the ill-fated voyage by the
captain of the petitioner's vessel had caused the sinking. After the vessel had
cleared Limbones Point while navigating towards the direction of Fortune Island, the
captain already noticed the listing of the vessel by three degrees to the portside of
the vessel, but, according to the BMI, he did not exercise prudence as required by
the situation in which his vessel was suffering the battering on the starboard side
by big waves of seven to eight meters high and strong southwesterly winds of 25
knots. The BMI pointed out that he should have considerably reduced the speed of
the vessel based on his experience about the vessel - a close-type ship of seven
decks, and of a wide and high superstructure - being vulnerable if exposed to
strong winds and high waves. He ought to have also known that maintaining a high
speed under such circumstances would have shifted the solid and liquid cargo of the
vessel to port, worsening the tilted position of the vessel. It was only after a few
minutes thereafter that he finally ordered the speed to go down to 14 knots, and to
put ballast water to the starboard-heeling tank to arrest the continuous listing at
portside. By then, his moves became an exercise in futility because, according to
the BMI, the vessel was already listing to her portside between 15 to 20 degrees,
which was almost the maximum angle of the vessel's loll. It then became inevitable
for the vessel to lose her stability.

The BMI concluded that the captain had executed several starboard maneuvers
despite the critical situation of the vessel, and that the maneuvers had greatly
added to the tilting of the vessel. It observed:
ChanRoblesVi rtua lawlib rary

x x x In the open seas, with a fast speed of 14 knots, advance maneuvers

such as this would tend to bring the body of the ship in the opposite side.
In navigational terms, this movement is described as the centripetal force.
This force is produced by the water acting on the side of the ship away
from the center of the turn. The force is considered to act at the center of
lateral resistance which, in this case, is the centroid of the underwater
area of the ship's side away from the center of the turn. In the case of
the Princess, when the Captain maneuvered her to starboard, her body
shifted its weight to port. Being already inclined to an angle of 15 degrees,
coupled with the instantaneous movement of the ship, the cargoes below
deck could have completely shifted its position and weight towards
portside. By this time, the ship being ravaged simultaneously by ravaging
waves and howling winds on her starboard side, finally lost her grip.53 chanro blesvi rt uallawl ibra ry

Clearly, the petitioner and its agents on the scene acted wantonly and
recklessly. Wanton and reckless are virtually synonymous in meaning as respects
liability for conduct towards others.54Wanton means characterized by extreme
recklessness and utter disregard for the rights of others; or marked by or
manifesting arrogant recklessness of justice or of rights or feelings of
others.55 Conduct is reckless when it is an extreme departure from ordinary care, in
a situation in which a high degree of danger is apparent. It must be more than any
mere mistake resulting from inexperience, excitement, or confusion, and more than
mere thoughtlessness or inadvertence, or simple inattention.56 cha nro bleslaw

The actuations of the petitioner and its agents during the incident attending the
unfortunate sinking of the M/V Princess of the Orient were far below the standard of
care and circumspection that the law on common carriers demanded. Accordingly,
we hereby fix the sum of P1,000,000.00 in order to serve fully the objective of
exemplarity among those engaged in the business of transporting passengers and
cargo by sea. The amount would not be excessive, but proper. As the Court put it
in Pereña v. Zarate:57
Anent the P1,000,000.00 allowed as exemplary damages, we should not reduce the
amount if only to render effective the desired example for the public good. As a
common carrier, the Perenas needed to be vigorously reminded to observe their
duty to exercise extraordinary diligence to prevent a similarly senseless accident
from happening again. Only by an award of exemplary damages in that amount
would suffice to instill in them and others similarly situated like them the ever-
present need for greater and constant vigilance in the conduct of a business imbued
with public interest.58 (Bold underscoring supplied for emphasis)
WHEREFORE, the Court AFFIRMS the decision promulgated on June 27, 2005
with the MODIFICATIONS that: (a) the amount of moral damages is fixed at
P1,000,000.00; (b) the amount of P1,000,000.00 is granted as exemplary
damages; and (c) the sum of P120,000.00 is allowed as temperate damages, all to
be paid to the heirs of the late Napoleon Sesante. In addition, all the amounts
hereby awarded shall earn interest of 6% per annum from the finality of this
decision until fully paid. Costs of suit to be paid by the petitioner.

SO ORDERED. chanRoblesvi rtual Lawl ibra ry

G.R. No. 161151, March 24, 2014

BJDC CONSTRUCTION, REPRESENTED BY ITS MANAGER/PROPRIETOR

JANET S. DELA CRUZ, Petitioner, v. NENA E. LANUZO, CLAUDETTE E. LANUZO,
JANET E. LANUZO, JOAN BERNABE E. LANUZO, AND RYAN JOSE E.
LANUZO, Respondents.

DECISION

BERSAMIN, J.:

The party alleging the negligence of the other as the cause of injury has the burden
to establish the allegation with competent evidence. If the action based on
negligence is civil in nature, the proof required is preponderance of evidence.

This case involves a claim for damages arising from the death of a motorcycle rider
in a nighttime accident due to the supposed negligence of a construction company
then undertaking re–blocking work on a national highway. The plaintiffs insisted
that the accident happened because the construction company did not provide
adequate lighting on the site, but the latter countered that the fatal accident was
caused by the negligence of the motorcycle rider himself. The trial court decided in
favor of the construction company, but the Court of Appeals (CA) reversed the
decision and ruled for the plaintiffs.

Hence, this appeal.

Antecedents

On January 5, 1998, Nena E. Lanuzo (Nena) filed a complaint for damages1 against
BJDC Construction (company), a single proprietorship engaged in the construction
business under its Manager/Proprietor Janet S. de la Cruz. The company was the
contractor of the re–blocking project to repair the damaged portion of one lane of
the national highway at San Agustin, Pili, Camarines Sur from September 1997to
November 1997.
Nena alleged that she was the surviving spouse of the late Balbino Los Baños
Lanuzo (Balbino) who figured in the accident that transpired at the site of the re–
blocking work at about 6:30 p.m. on October 30, 1997; that Balbino’s Honda
motorcycle sideswiped the road barricade placed by the company in the right lane
portion of the road, causing him to lose control of his motorcycle and to crash on
the newly cemented road, resulting in his instant death; and that the company’s
failure to place illuminated warning signs on the site of the project, especially
during night time, was the proximate cause of the death of Balbino. She prayed
that the company be held liable for damages, to wit: (a) P5,000.00 as the actual
damage to Balbino’s motorcycle; (b) P100,000.00 as funeral and burial expenses;
(c) P559,786.00 representing the “unearned income in expectancy” of Balbino; (d)
P100,000.00 as moral damages; (e) P75,000.00 as attorney’s fees, plus P1,500.00
per court appearance; and (f) P20,000.00 as litigation costs and other incidental
expenses.

In its answer,2 the company denied Nena’s allegations of negligence, insisting that
it had installed warning signs and lights along the highway and on the barricades of
the project; that at the time of the incident, the lights were working and switched
on; that its project was duly inspected by the Department of Public Works and
Highways (DPWH), the Office of the Mayor of Pili, and the Pili Municipal Police
Station; and that it was found to have satisfactorily taken measures to ensure the
safety of motorists.

The company further alleged that since the start of the project in September 1997,
it installed several warning signs, namely: (a) big overhead streamers containing
the words SLOW DOWN ROAD UNDER REPAIR AHEAD hung approximately 100
meters before the re–blocking site, one facing the Pili–bound motorists and another
facing the Naga–bound motorists; (b) road signs containing the words SLOW DOWN
ROAD UNDER REPAIR 100 METERS AHEAD placed on the road shoulders below the
streamers; (c) road signs with the words SLOW DOWN ROAD UNDER REPAIR 50
METERS AHEAD placed 50 meters before the project site; (d) barricades surrounded
the affected portion of the highway, and a series of 50–watt light bulbs were
installed and switched on daily from 6:00 p.m. until the following morning; (e) big
warning signs containing the words SLOW DOWN ROAD UNDER REPAIR and SLOW
DOWN MEN WORKING were displayed at both ends of the affected portion of the
highway with illumination from two 50–watt bulbs from 6:00 p.m. until the
following morning; and (f) the unaffected portion of the highway was temporarily
widened in the adjacent road shoulder to allow two–way vehicular traffic.

The company insisted that the death of Balbino was an accident brought about by
his own negligence, as confirmed by the police investigation report that stated,
among others, that Balbino was not wearing any helmet at that time, and the
accident occurred while Balbino was overtaking another motorcycle; and that the
police report also stated that the road sign/barricade installed on the road had a
light. Thus, it sought the dismissal of the complaint and prayed, by way of
counterclaim, that the Nena be ordered to pay P100,000.00 as attorney’s fees, as
well as moral damages to be proven in the course of trial.
The RTC subsequently directed the amendment of the complaint to include the
children of Nena and Balbino as co–plaintiffs, namely: Janet, Claudette, Joan
Bernabe and Ryan Jose, all surnamed Lanuzo. Hence, the plaintiffs are hereinafter
be referred to as the Lanuzo heirs.

Decision of the RTC

On October 8, 2001, the RTC rendered judgment in favor of the company, as

follows:chanRoble svi rtual Lawli bra ry

Plaintiffs are the survivors of Balbino Los Baños Lanuzo who met a traumatic death
on 30 October, 1997 at about 6:30 p.m., when he bumped his motorcycle on a
barricade that was lighted with an electric bulb, protecting from traffic the newly–
reblocked cement road between San Agustin and San Jose, Pili, Camarines Sur;
they claim defendant’s OMISSION in lighting up the barricaded portion of the
reblocking project being undertaken by defendant was the proximate cause of the
accident, leaving them bereaved and causing them actual and moral damages.

Defendant DENIED the claim of plaintiffs; both parties offered testimonial and
documentary evidence, from which this Court,

FINDS

that: plaintiff DID NOT present an eyewitness account of the death of their
decedent; on the contrary, the flagman of defendant was present when the
accident occurred, which was caused by the decedent having overtaken a
motorcycle ahead of [him] and on swerving, to avoid the barricade, hit it, instead,
breaking the lighted electric bulb on top of the barricade, resulting in the fall of the
decedent about 18 paces from where his motorcycle fell on the reblocked
pavement; the police investigator, policeman Corporal, by Exh. 1, confirmed the
tale of the flagman, aside from confirming the presence of the warning devices
placed not only on the premises but at places calculated to warn motorists of the
ongoing reblocking project.

OPINION

From the foregoing findings, it is the opinion of this Court that the plaintiffs were
unable to make out a case for damages, with a preponderance of evidence.

WHEREFORE, Judgment is hereby rendered, DISMISSING the complaint. 3

Decision of the CA

The Lanuzo heirs appealed to the CA.

On August 11, 2003, the CA promulgated its decision declaring that the issue was
whether the company had installed adequate lighting in the project so that
motorists could clearly see the barricade placed on the newly cemented lane that
was then still closed to vehicular traffic,4 thereby reversing the judgment of the
RTC, and holding thusly: c hanRoble svirtual Lawlib ra ry

WHEREFORE, premises considered, the present appeal is hereby GRANTED and the
decision appealed from in Civil Case No. P–2117 is hereby REVERSED and SET
ASIDE. A new judgment is hereby entered ordering the defendant–appellee to pay
the plaintiff–appellants, heirs of the victim Balbino L. B. Lanuzo, the sums of
P50,000.00 as death indemnity, P20,000.00 by way of temperate damages and
P939,736.50 as loss of earning capacity of the deceased Balbino L. B. Lanuzo.

SO ORDERED.5

The CA ruled that the following elements for the application of the doctrine of res
ipsa loquitur were present, namely: (1) the accident was of such character as to
warrant an inference that it would not have happened except for the defendant’s
negligence; (2) the accident must have been caused by an agency or
instrumentality within the exclusive management or control of the person charged
with the negligence complained of; and (3) the accident must not have been due to
any voluntary action or contribution on the part of the person injured.

The CA regarded as self–serving the testimony of Eduardo Zamora, an employee of

the company who testified that there was an electric bulb placed on top of the
barricade on the area of the accident. It held that Zamora’s statement was negated
by the statements of Ernesto Alto and Asuncion Sandia to the effect that they had
passed by the area immediately before the accident and had seen the road to be
dark and lit only by a gas lamp. It noted that SPO1 Corporal, the police
investigator, had noticed the presence of lighted electric bulbs in the area, but the
same had been installed on the other side of the street opposite the barricade.

The CA ruled that the placing of road signs and streamers alone did not prove that
the electric bulbs were in fact switched on at the time of the accident as to
sufficiently light up the newly re–blocked portion of the highway. It opined that
“[t]he trial court gave undue weight to the self–serving statement of appellee’s
employee, Eduardo Zamora, which was supposedly corroborated by SPO1 Pedro
Corporal. SPO1 Corporal arrived at the scene only after the accident occurred, and
thus the electric bulbs could have already been switched on by Zamora who was at
the area of the project.” It concluded that the negligence of the company was the
proximate cause of Balbino’s death; hence, the company was liable for damages.

The company filed a motion for reconsideration,6 but the CA denied the motion in
the resolution promulgated on November 13, 2003.

Issues

In this appeal, the company submits the following issues, namely: chanRoblesv irt ual Lawlib rary
I. The application by the Honorable Court of Appeals of the doctrine of res ipsa
loquitur to the case at bar, despite and contrary to the finding, among others, by
the trial court that the proximate cause of the accident is the victim’s
own negligence, is “not in accord with the law or with the applicable decisions of the
Supreme Court” [Sec. 6 (a), Rule 45, Rules of Court].

II. The Honorable Court of Appeals, by substituting its own findings of fact and
conclusion with those of the trial court despite the lack of “strong or cogent
reasons” therefor, “has so far departed from the accepted and usual course of
judicial proceedings ... as to call for an exercise of the power of supervision” by this
Honorable Supreme Court [Sec. 6 (b), Ibid.].

III. The findings by the Honorable Court of Appeals that respondents (appellants
therein) “had satisfactorily presented a prima facie case of negligence which the
appellee (petitioner herein) had not overcome with an adequate explanation” and
which alleged negligence is “the proximate cause of death of Lanuzo” are
manifestations of grave abuse of discretion in the appreciation of facts, and
constitute a judgment based on a misinterpretation of facts, which justify a review
by this Honorable Supreme Court.7

The company reiterates the categorical finding of the RTC that the proximate cause
of the accident was Balbino’s own negligence, and that such finding was based on
the conclusion stated by SPO1 Corporal in his investigation report to the effect that
the incident was “purely self accident,” and on the unrebutted testimony of Zamora
to the effect that Balbino was driving his motorcycle at a fast speed trying to
overtake another motorcycle rider before hitting the barricade. On the other hand,
it insists that its documentary and testimonial evidence proved its exercise of due
care and observance of the legally prescribed safety requirements for contractors.

The company maintains that Balbino was familiar with the re–blocking project that
had been going on for months because he had been passing the area at least four
times a day during weekdays in going to and from his place of work in the morning
and in the afternoon; and that he could have avoided the accident had he exercised
reasonable care and prudence.

The company assails the application of the doctrine of res ipsa loquitur, positing
that the Lanuzo heirs did not establish all the requisites for the doctrine to apply.

Anent the first requisite, the company states that the Lanuzo heirs did not
successfully counter its documentary and testimonial evidence showing that
Balbino’s own negligence had caused the accident. It cites the fact that Balbino was
familiar with the road conditions and the re–blocking project because he had been
passing there daily; and that Balbino had been driving too fast and not wearing the
required helmet for motorcycle drivers, which were immediately evident because he
had been thrown from his motorcycle and had landed “18 paces away” from the
barricade that he had hit.

On the second requisite, the company argues that Balbino’s driving and operation
of his motorcycle on the day of the accident indicated that the accident was not
within its exclusive management and control; and that as to the matters that were
within its control, it sufficiently showed its observance of due and reasonable care
and its compliance with the legally prescribed safety requirements.

Regarding the third requisite, the company reminds that Zamora and SPO1
Corporal revealed that Balbino was overtaking another motorcycle rider before
hitting the barricade. The credibility of said witnesses was not challenged, and their
testimonies not rebutted; hence, the CA erred in relying on the recollections of
Asuncion Sandia and Ernesto Alto who were not present when the incident took
place. Sandia and Alto’s testimonies could not be accorded more weight than
Zamora’s eyewitness account, considering that the latter was believed by the trial
judge who had the first–hand opportunity to observe the demeanor of the
witnesses.

Whose negligence was the proximate cause of the death of Balbino?

Ruling of the Court

Inasmuch as the RTC and the CA arrived at conflicting findings of fact on who was
the negligent party, the Court holds that an examination of the evidence of the
parties needs to be undertaken to properly determine the issue.8 The Court must
ascertain whose evidence was preponderant, for Section 1, Rule 133 of the Rules of
Court mandates that in civil cases, like this one, the party having the burden of
proof must establish his case by a preponderance of evidence.9

Burden of proof is the duty of a party to present evidence on the facts in issue
necessary to establish his claim or defense by the amount of evidence required by
law.10 It is basic that whoever alleges a fact has the burden of proving it because a
mere allegation is not evidence.11 Generally, the party who denies has no burden to
prove.12 In civil cases, the burden of proof is on the party who would be defeated if
no evidence is given on either side.13 The burden of proof is on the plaintiff if the
defendant denies the factual allegations of the complaint in the manner required by
the Rules of Court, but it may rest on the defendant if he admits expressly or
impliedly the essential allegations but raises affirmative defense or defenses, which
if proved, will exculpate him from liability.14

By preponderance of evidence, according to Raymundo v. Lunaria:15

x x x is meant that the evidence as a whole adduced by one side is superior to that
of the other. It refers to the weight, credit and value of the aggregate evidence on
either side and is usually considered to be synonymous with the term “greater
weight of evidence” or “greater weight of the credible evidence.” It is evidence
which is more convincing to the court as worthy of belief than that which is offered
in opposition thereto.

In addition, according to United Airlines, Inc. v. Court of Appeals,16 the plaintiff

must rely on the strength of his own evidence and not upon the weakness of the
defendant’s.

Upon a review of the records, the Court affirms the findings of the RTC, and rules
that the Lanuzo heirs, the parties carrying the burden of proof, did not establish by
preponderance of evidence that the negligence on the part of the company was the
proximate cause of the fatal accident of Balbino.

Negligence, the Court said in Layugan v. Intermediate Appellate Court,17 is “the

omission to do something which a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do,18 or as Judge Cooley
defines it, ‘(t)he failure to observe for the protection of the interests of another
person, that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury.’”19 In order that a party
may be held liable for damages for any injury brought about by the negligence of
another, the claimant must prove that the negligence was the immediate and
proximate cause of the injury. Proximate cause is defined as “that cause, which, in
natural and continuous sequence, unbroken by any efficient intervening cause,
produces the injury and without which the result would not have occurred.”20

The test by which the existence of negligence in a particular case is determined is

aptly stated in the leading case of Picart v. Smith,21 as follows:
chanRoble svi rtual Lawli bra ry

The test by which to determine the existence of negligence in a particular case may
be stated as follows: 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? If not, then he is guilty of negligence. The law here in effect
adopts the standard supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the actor in the
situation before him. The law considers what would be reckless, blameworthy, or
negligent in the man of ordinary intelligence and prudence and determines liability
by that.

The question as to what would constitute the conduct of a prudent man in a given
situation must of course be always determined in the light of human experience and
in view of the facts involved in the particular case. Abstract speculation cannot here
be of much value but this much can be profitably said: Reasonable men govern
their conduct by the circumstances which are before them or known to them. They
are not, and are not supposed to be, omniscient of the future. Hence they can be
expected to take care only when there is something before them to suggest or warn
of danger. Could a prudent man, in the case under consideration, foresee harm as a
result of the course actually pursued? If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable foresight of harm, followed by
the ignoring of the suggestion born of this prevision, is always necessary before
negligence can be held to exist. Stated in these terms, the proper criterion for
determining the existence of negligence in a given case is this: Conduct is said to
be negligent when a prudent man in the position of the tortfeasor would have
foreseen that an effect harmful to another was sufficiently probable to warrant his
foregoing the conduct or guarding against its consequences.

First of all, we note that the Lanuzo heirs argued in the trial and appellate courts
that there was a total omission on the part of the company to place illuminated
warning signs on the site of the project, especially during night time, in order to
warn motorists of the project. They claim that the omission was the proximate
cause of the death of Balbino.22 In this appeal, however, they contend that the
negligence of the company consisted in its omission to put up adequate lighting and
the required signs to warn motorists of the project, abandoning their previous
argument of a total omission to illuminate the project site.

During the trial, the Lanuzo heirs attempted to prove inadequacy of illumination
instead of the total omission of illumination. Their first witness was Cesar Palmero,
who recalled that lights had been actually installed in the site of the project. The
next witness was Ernesto Alto, who stated that he had seen three light bulbs
installed in the site, placed at intervals along the stretch of the road covered by the
project. Alto further stated that he had passed the site on board his tricycle on
October 30, 1997 prior to the accident, and had seen only a gas lamp, not light
bulbs, on his approach. Another witness of the plaintiffs, Asuncion Sandia, claimed
that she had also passed the site on board a bus on the night just prior to the
accident, and had seen the site to be dark, with only one lane open to traffic, with
no light at all. Obviously, the witnesses of the plaintiffs were not consistent on their
recollections of the significant detail of the illumination of the site.

In contrast, the company credibly refuted the allegation of inadequate illumination.

Zamora, its flagman in the project, rendered an eyewitness account of the accident
by stating that the site had been illuminated by light bulbs and gas lamps, and that
Balbino had been in the process of overtaking another motorcycle rider at a fast
speed when he hit the barricade placed on the newly cemented road. On his part,
SPO1 Corporal, the police investigator who arrived at the scene of the accident on
October 30, 1997, recalled that there were light bulbs on the other side of the
barricade on the lane coming from Naga City; and that the light bulb on the lane
where the accident had occurred was broken because it had been hit by the victim’s
motorcycle. Witnesses Gerry Alejo and Engr. Victorino del Socorro remembered that
light bulbs and gas lamps had been installed in the area of the project.

Secondly, the company presented as its documentary evidence the investigation

report dated December 3, 1997 of SPO1 Corporal (Annex 1), the relevant portions
of which indicated the finding of the police investigator on the presence of
illumination at the project site, viz: chanRoble svi rtual Lawli bra ry

SUBJECT: Investigation Report Re: Homicide Thru Reckless Imprudence (Self

Accident)

xxxx

II. MATTERS INVESTIGATED: chanRoblesvi rtua lLawl ibra ry

1. To determine how the incident happened.
2. To determine the vehicle involved.

III. FACTS OF THE CASE:

3. At 6:45 P.M. October 30, 1997, Elements of Pili Municipal Police

Station led by SPO2 Melchor Estallo, SPO2 Cesar Pillarda, both
members of the patrol section and SPO1 Pedro D. Corporal,
investigator reported having conducted an on the spot investigation
re: vehicular incident (Self Accident) that happened on or about 6:30
o’clock in the evening of October 30, 1997 along national highway,
San Agustin, Pili, Camarines Sur, wherein one Balbino Lanuzo y Doe,
of legal age, married, a public school teacher, a resident of San Jose,
Pili, Camarines Sur while driving his Honda motorcycle 110 CC enroute
to San Jose, Pili, Camarines Sur from Poblacion, this municipality and
upon reaching at road re: blocking portion of the national highway at
barangay San Agustin, Pili, Camarines Sur and while overtaking
another motorcycle ahead incidentally side–swiped a road
sign/barricade installed at the lane road re: blocking of the national
highway, causing said motorcycle rider to swerved his ridden
motorcycle to the right and stumble down and fell to the concrete
cemented road. Victim was rushed to Bicol Medical Center, Naga City
for treatment but was pronounced dead on arrival.

4. That upon arrival at the scene of the incident it was noted that
road sign/barricade installed on the road has a light.

5. That said road was under repair for almost a month which one lane
portion of the national highway is possible of all passing vehicles from
south and north bound.

6. That said motorcycle stumble down on the newly repair portion of the
national highway and the driver lying down beside the motorcycle.

xxxx

7. That one of the passerby revealed that the victim possibly be

miscalculated the road block that made him to tumble down when he
applied sudden brake.

IV. FINDINGS/DISCUSSION: chanRoblesvi rtual Lawli bra ry

8. The time of the incident was at about 6:30 o’clock in the evening a
time wherein dark of the night is approaching the vision of the driver is
affected with the changing condition and it is all the time when driver
should lights his driven vehicle, as to this case, the driver Balbino
Lanuzo y Doe (victim has exercise all precautionary measures to avoid
 accident but due to self accident he incidentally sideswiped the road
sign/barricade of the re: Blocking portion of the national highway
resulting him to stumble down his motorcycle and fell down to the
concrete cement road.

9. The driver/victim met unexpectedly (sic) along that one lane potion of
the re: blocking and considering it was night time, confusion overthrew
him and because of sudden impulse, he lost control on the motorcycle
he was driving.

10.That the driver/victim has no crush (sic) helmet at the time of the
incident considering that it should be a basic requirement as to
prevent from any accident.

V. RECOMMENDATION: chanRoblesvi rtual Lawli bra ry

11.Basing on the above discussion and facts surroundings the case was
purely self accident resulting to Homicide Thru Reckless Imprudence
and the case must be closed. (Emphasis ours.) 23

Additionally, the company submitted the application for lighting permit covering the
project site (Annex 7) to prove the fact of installation of the electric light bulbs in
the project site.

In our view, the RTC properly gave more weight to the testimonies of Zamora and
SPO1 Corporal than to those of the witnesses for the Lanuzo heirs. There was
justification for doing so, because the greater probability pertained to the former.
Moreover, the trial court’s assessment of the credibility of the witnesses and of their
testimonies is preferred to that of the appellate court’s because of the trial court’s
unique first–hand opportunity to observe the witnesses and their demeanor as
such. The Court said in Cang v. Cullen:24

The findings of the trial court on the credibility of witnesses are accorded great
weight and respect – even considered as conclusive and binding on this Court –
since the trial judge had the unique opportunity to observe the witness firsthand
and note his demeanor, conduct and attitude under grueling examination. Only the
trial judge can observe the furtive glance, blush of conscious shame, hesitation,
flippant or sneering tone, calmness, sigh of a witness, or his scant or full realization
of an oath – all of which are useful aids for an accurate determination of a witness'
honesty and sincerity. He can thus be expected to determine with reasonable
discretion which testimony is acceptable and which witness is worthy of belief.

Absent any showing that the trial court’s calibration of the credibility of the
witnesses was flawed, we are bound by its assessment. This Court will sustain such
findings unless it can be shown that the trial court ignored, overlooked,
misunderstood, misappreciated, or misapplied substantial facts and circumstances,
which, if considered, would materially affect the result of the case.25
The Court observes, too, that SPO1 Corporal, a veteran police officer detailed for
more than 17 years at the Pili Police Station, enjoyed the presumption of regularity
in the performance of his official duties.26 The presumption, although rebuttable,
stands because the Lanuzo heirs did not adduce evidence to show any deficiency or
irregularity in the performance of his official duty as the police investigator of the
accident. They also did not show that he was impelled by any ill motive or bias to
testify falsely.

Thirdly, the CA unreasonably branded the testimonies of Zamora and SPO1

Corporal as “self–serving.” They were not. Self–serving evidence refers to out–of–
court statements that favor the declarant’s interest;27 it is disfavored mainly
because the adverse party is given no opportunity to dispute the statement and
their admission would encourage fabrication of testimony.28 But court declarations
are not self–serving considering that the adverse party is accorded the opportunity
to test the veracity of the declarations by cross–examination and other methods.

There is no question that Zamora and SPO1 Corporal were thoroughly cross–
examined by the counsel for the Lanuzo heirs. Their recollections remained
unchallenged by superior contrary evidence from the Lanuzo heirs.

Fourthly, the doctrine of res ipsa loquitur had no application here. In Tan v. JAM
Transit, Inc.,29 the Court has discussed the doctrine thusly: cha nRoblesvi rt ual Lawlib rary

Res ipsa loquitur is a Latin phrase that literally means “the thing or the transaction
speaks for itself.” It is a maxim for the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may permit an inference or raise
a presumption of negligence, or make out a plaintiff’s prima facie case, and present
a question of fact for defendant to meet with an explanation. Where the thing that
caused the injury complained of is shown to be under the management of the
defendant or his servants; and the accident, in the ordinary course of things, would
not happen if those who had management or control used proper care, it affords
reasonable evidence — in the absence of a sufficient, reasonable and logical
explanation by defendant — that the accident arose from or was caused by the
defendant’s want of care. This rule is grounded on the superior logic of ordinary
human experience, and it is on the basis of such experience or common knowledge
that negligence may be deduced from the mere occurrence of the accident itself.
Hence, the rule is applied in conjunction with the doctrine of common knowledge.

For the doctrine to apply, the following requirements must be shown to exist,
namely: (a) the accident is of a kind that ordinarily does not occur in the absence of
someone’s negligence; (b) it is caused by an instrumentality within the exclusive
control of the defendant or defendants; and (c) the possibility of contributing
conduct that would make the plaintiff responsible is eliminated.30

The Court has warned in Reyes v. Sisters of Mercy Hospital,31 however, that “res
ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to
be cautiously applied, depending upon the circumstances of each case.”
Based on the evidence adduced by the Lanuzo heirs, negligence cannot be fairly
ascribed to the company considering that it has shown its installation of the
necessary warning signs and lights in the project site. In that context, the fatal
accident was not caused by any instrumentality within the exclusive control of the
company. In contrast, Balbino had the exclusive control of how he operated and
managed his motorcycle. The records disclose that he himself did not take the
necessary precautions. As Zamora declared, Balbino overtook another motorcycle
rider at a fast speed, and in the process could not avoid hitting a barricade at the
site, causing him to be thrown off his motorcycle onto the newly cemented road.
SPO1 Corporal’s investigation report corroborated Zamora’s declaration. This
causation of the fatal injury went uncontroverted by the Lanuzo heirs.

Moreover, by the time of the accident, the project, which had commenced in
September 1997, had been going on for more than a month and was already in the
completion stage. Balbino, who had passed there on a daily basis in going to and
from his residence and the school where he then worked as the principal, was thus
very familiar with the risks at the project site. Nor could the Lanuzo heirs justly
posit that the illumination was not adequate, for it cannot be denied that Balbino’s
motorcycle was equipped with headlights that would have enabled him at dusk or
night time to see the condition of the road ahead. That the accident still occurred
surely indicated that he himself did not exercise the degree of care expected of him
as a prudent motorist.

According to Dr. Abilay, the cause of death of Balbino was the fatal depressed
fracture at the back of his head, an injury that Dr. Abilay opined to be attributable
to his head landing on the cemented road after being thrown off his motorcycle.
Considering that it was shown that Balbino was not wearing any protective head
gear or helmet at the time of the accident, he was guilty of negligence in that
respect. Had he worn the protective head gear or helmet, his untimely death would
not have occurred.

The RTC was correct on its conclusions and findings that the company was not
negligent in ensuring safety at the project site. All the established circumstances
showed that the proximate and immediate cause of the death of Balbino was his
own negligence. Hence, the Lanuzo heirs could not recover damages.32

WHEREFORE, the Court GRANTS the petition for review

on certiorari; REVERSES and SETS ASIDE the decision promulgated on August 11,
2003 by the Court of Appeals; REINSTATES the decision rendered on October 8,
2001 by the Regional Trial Court, Branch 32, in Pili, Camarines Sur dismissing the
complaint; and MAKES no pronouncements on costs of suit.

SO ORDERED.

G.R. No. 175540 April 7, 2014

DR. FILOTEO A. ALANO, Petitioner,
vs.
ZENAIDA MAGUD-LOGMAO, Respondent.

DECISION

PERALTA, J.:

This deals with the Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that
the Decision1 of the Court of Appeals (CA), dated March 31, 2006, adjudging petitioner liable for
damages, and the Resolution2 dated November 22, 2006, denying petitioner's motion for
reconsideration thereof, be reversed and set aside.

The CA's narration of facts is accurate, to wit:

Plaintiff-appellee Zenaida Magud-Logmao is the mother of deceased Arnelito Logmao. Defendant-

appellant Dr. Filoteo Alano is the Executive Director of the National Kidney Institute (NKI).

At around 9:50 in the evening of March 1, 1988, Arnelito Logmao, then eighteen (18) years old, was
brought to the East Avenue Medical Center (EAMC) in Quezon City by two sidewalk vendors, who
allegedly saw the former fall from the overpass near the Farmers’ Market in Cubao, Quezon City.
The patient’s data sheet identified the patient as Angelito Lugmoso of Boni Avenue, Mandaluyong.
However, the clinical abstract prepared by Dr. Paterno F. Cabrera, the surgical resident on-duty at
the Emergency Room of EAMC, stated that the patient is Angelito [Logmao].

Dr. Cabrera reported that [Logmao] was drowsy with alcoholic breath, was conscious and coherent;
that the skull x-ray showed no fracture; that at around 4:00 o’clock in the morning of March 2, 1988,
[Logmao] developed generalized seizures and was managed by the neuro-surgery resident on-duty;
that the condition of [Logmao] progressively deteriorated and he was intubated and ambu-bagging
support was provided; that admission to the Intensive Care Unit (ICU) and mechanical ventilator
support became necessary, but there was no vacancy at the ICU and all the ventilator units were
being used by other patients; that a resident physician of NKI, who was rotating at EAMC, suggested
that [Logmao] be transferred to NKI; and that after arrangements were made, [Logmao] was
transferred to NKI at 10:10 in the morning.

At the NKI, the name Angelito [Logmao] was recorded as Angelito Lugmoso. Lugmoso was
immediately attended to and given the necessary medical treatment. As Lugmoso had no relatives
around, Jennifer B. Misa, Transplant Coordinator, was asked to locate his family by enlisting police
and media assistance. Dr. Enrique T. Ona, Chairman of the Department of Surgery, observed that
the severity of the brain injury of Lugmoso manifested symptoms of brain death. He requested the
Laboratory Section to conduct a tissue typing and tissue cross-matching examination, so that should
Lugmoso expire despite the necessary medical care and management and he would be found to be
a suitable organ donor and his family would consent to organ donation, the organs thus donated
could be detached and transplanted promptly to any compatible beneficiary.

Jennifer Misa verified on the same day, March 2, 1988, from EAMC the identity of Lugmoso and,
upon her request, she was furnished by EAMC a copy of the patient’s date sheet which bears the
name Angelito Lugmoso, with address at Boni Avenue, Mandaluyong. She then contacted several
radio and television stations to request for air time for the purpose of locating the family of Angelito
Lugmoso of Boni Avenue, Mandaluyong, who was confined at NKI for severe head injury after
allegedly falling from the Cubao overpass, as well as Police Station No. 5, Eastern Police District,
whose area of jurisdiction includes Boni Avenue, Mandaluyong, for assistance in locating the
relatives of Angelito Lugmoso. Certifications were issued by Channel 4, ABS-CBN and GMA
attesting that the request made by the NKI on March 2, 1988 to air its appeal to locate the family and
relatives of Angelito Lugmoso of Boni Avenue, Mandaluyong was accommodated. A Certification
was likewise issued by Police Station No. 5, Eastern Police District, Mandaluyong attesting to the
fact that on March 2, 1988, at about 6:00 p.m., Jennifer Misa requested for assistance to
immediately locate the family and relatives of Angelito Lugmoso and that she followed up her
request until March 9, 1988.

On March 3, 1988, at about 7:00 o’clock in the morning, Dr. Ona was informed that Lugmoso had
been pronounced brain dead by Dr. Abdias V. Aquino, a neurologist, and by Dr. Antonio Rafael, a
neurosurgeon and attending physician of Lugmoso, and that a repeat electroencephalogram (EEG)
was in progress to confirm the diagnosis of brain death. Two hours later, Dr. Ona was informed that
the EEG recording exhibited a flat tracing, thereby confirming that Lugmoso was brain dead. Upon
learning that Lugmoso was a suitable organ donor and that some NKI patients awaiting organ
donation had blood and tissue types compatible with Lugmoso, Dr. Ona inquired from Jennifer Misa
whether the relatives of Lugmoso had been located so that the necessary consent for organ
donation could be obtained. As the extensive search for the relatives of Lugmoso yielded no positive
result and time being of the essence in the success of organ transplantation, Dr. Ona requested Dr.
Filoteo A. Alano, Executive Director of NKI, to authorize the removal of specific organs from the body
of Lugmoso for transplantation purposes. Dr. Ona likewise instructed Dr. Rose Marie Rosete-Liquete
to secure permission for the planned organ retrieval and transplantation from the Medico-Legal
Office of the National Bureau of Investigation (NBI), on the assumption that the incident which lead
to the brain injury and death of Lugmoso was a medico legal case.

On March 3, 1988, Dr. Alano issued to Dr. Ona a Memorandum, which reads as follows:

This is in connection with the use of the human organs or any portion or portions of the human body
of the deceased patient, identified as a certain Mr. Angelito Lugmoso who was brought to the
National Kidney Institute on March 2, 1988 from the East Avenue Medical Center.

As shown by the medical records, the said patient died on March 3, 1988 at 9:10 in the morning due
to craniocerebral injury. Please make certain that your Department has exerted all reasonable efforts
to locate the relatives or next of kin of the said deceased patient such as appeal through the radios
and television as well as through police and other government agencies and that the NBI [Medico-
Legal] Section has been notified and is aware of the case.

If all the above has been complied with, in accordance with the provisions of Republic Act No. 349
as amended and P.D. 856, permission and/or authority is hereby given to the Department of Surgery
to retrieve and remove the kidneys, pancreas, liver and heart of the said deceased patient and to
transplant the said organs to any compatible patient who maybe in need of said organs to live and
survive.

A Certification dated March 10, 1988 was issued by Dr. Maximo Reyes, Medico-Legal Officer of the
NBI, stating that he received a telephone call from Dr. Liquete on March 3, 1988 at 9:15 a.m.
regarding the case of Lugmoso, who was declared brain dead; that despite efforts to locate the
latter’s relatives, no one responded; that Dr. Liquete sought from him a second opinion for organ
retrieval for donation purposes even in the absence of consent from the family of the deceased; and
that he verbally agreed to organ retrieval.

At 3:45 in the afternoon of March 3, 1988, a medical team, composed of Dr. Enrique Ona, as
principal surgeon, Drs. Manuel Chua-Chiaco, Jr., Rose Marie Rosete-Liquete, Aurea Ambrosio,
Ludivino de Guzman, Mary Litonjua, Jaime Velasquez, Ricardo Fernando, and Myrna Mendoza,
removed the heart, kidneys, pancreas, liver and spleen of Lugmoso. The medical team then
transplanted a kidney and the pancreas of Lugmoso to Lee Tan Hoc and the other kidney of
Lugmoso to Alexis Ambustan. The transplant operation was completed at around 11:00 o’clock in
the evening of March 3, 1988.

On March 4, 1988, Dr. Antonio R. Paraiso, Head of the Cadaver Organ Retrieval Effort (CORE)
program of NKI, made arrangements with La Funeraria Oro for the embalmment of the cadaver of
Lugmoso good for a period of fifteen (15) days to afford NKI more time to continue searching for the
relatives of the latter. On the same day, Roberto Ortega, Funeral Consultant of La Funeraria Oro,
sent a request for autopsy to the NBI. The Autopsy Report and Certification of Post-Mortem
Examination issued by the NBI stated that the cause of death of Lugmoso was intracranial
hemorrhage secondary to skull fracture.

On March 11, 1988, the NKI issued a press release announcing its successful double organ
transplantation. Aida Doromal, a cousin of plaintiff, heard the news aired on television that the donor
was an eighteen (18) year old boy whose remains were at La Funeraria Oro in Quezon City. As the
name of the donor sounded like Arnelito Logmao, Aida informed plaintiff of the news report.

It appears that on March 3, 1988, Arlen Logmao, a brother of Arnelito, who was then a resident of
17-C San Pedro Street, Mandaluyong, reported to Police Station No. 5, Eastern Police District,
Mandaluyong that the latter did not return home after seeing a movie in Cubao, Quezon City, as
evidenced by a Certification issued by said Station; and that the relatives of Arnelito were likewise
informed that the latter was missing. Upon receiving the news from Aida, plaintiff and her other
children went to La Funeraria Oro, where they saw Arnelito inside a cheap casket.

On April 29, 1988, plaintiff filed with the court a quo a complaint for damages against Dr. Emmanuel
Lenon, Taurean Protectors Agency, represented by its Proprietor, Celso Santiago, National Kidney
Institute, represented by its Director, Dr. Filoteo A. Alano, Jennifer Misa, Dr. Maximo Reyes, Dr.
Enrique T. Ona, Dr. Manuel Chua-Chiaco, Jr., Dr. Rose Marie O. Rosete-Liquete, Dr. Aurea Z.
Ambrosio, Dr. Ludivino de Guzman, Dr. Mary Litonjua, Dr. Jaime Velasquez, Dr. Ricardo Fernando,
Dr. Myrna Mendoza, Lee Tan Koc, Alexis Ambustan, Dr. Antonio R. Paraiso, La Funeraria Oro, Inc.,
represented by its President, German E. Ortega, Roberto Ortega alias Bobby Ortega, Dr. Mariano B.
Cueva, Jr., John Doe, Peter Doe, and Alex Doe in connection with the death of her son Arnelito.
Plaintiff alleged that defendants conspired to remove the organs of Arnelito while the latter was still
alive and that they concealed his true identity.

On January 17, 2000, the court a quo rendered judgment finding only Dr. Filoteo Alano liable for
damages to plaintiff and dismissing the complaint against the other defendants for lack of legal
basis.3

After finding petitioner liable for a quasi-delict, the Regional Trial Court of Quezon City (RTC)
ordered petitioner to pay respondent ₱188,740.90 as actual damages; ₱500,000.00 as moral
damages; ₱500,000.00 as exemplary damages; ₱300,000.00 as attorney's fees; and costs of suit.
Petitioner appealed to the CA.

On March 31, 2006, the CA issued its Decision, the dispositive portion of which reads as follows:

WHEREFORE, the Decision appealed from is AFFIRMED, with MODIFICATION by DELETING the
award of ₱188,740.90 as actual damages and REDUCING the award of moral damages to
₱250,000.00, the award of exemplary damages to ₱200,000.00 and the award of attorney's fees to
₱100,000.00.
SO ORDERED.4

Petitioner then elevated the matter to this Court via a petition for review on certiorari, where the
following issues are presented for resolution:

A. WHETHER THE COURT OF APPEALS DISREGARDED EXISTING JURISPRUDENCE

PRONOUNCED BY THIS HONORABLE SUPREME COURT IN HOLDING PETITIONER
DR. FILOTEO ALANO LIABLE FOR MORAL AND EXEMPLARY DAMAGES AND
ATTORNEY'S FEES DESPITE THE FACT THAT THE ACT OF THE PETITIONER IS NOT
THE PROXIMATE CAUSE NOR IS THERE ANY FINDING THAT THE ACT OF THE
PETITIONER WAS THE PROXIMATE CAUSE OF THE INJURY OR DAMAGE ALLEGEDLY
SUSTAINED BY RESPONDENT ZENAIDA MAGUD-LOGMAO.

B. WHETHER THE COURT OF APPEALS GRAVELY ERRED IN REFUSING AND/OR

FAILING TO DECLARE THAT PETITIONER DR. ALANO ACTED IN GOOD FAITH AND
PURSUANT TO LAW WHEN HE ISSUED THE AUTHORIZATION TO REMOVE AND
RETRIEVE THE ORGANS OF ANGELITO LUGMOSO (LATER IDENTIFIED TO BE IN
FACT ARNELITO LOGMAO) CONSIDERING THAT NO NEGLIGENCE CAN BE
ATTRIBUTED OR IMPUTED ON HIM IN HIS PERFORMANCE OF AN ACT MANDATED BY
LAW.

C. WHETHER THE COURT OF APPEALS GRAVELY ERRED IN AWARDING

RESPONDENT ZENAIDA MAGUD-LOGMAO MORAL AND EXEMPLARY DAMAGES AND
ATTORNEY'S FEES THAT ARE NOT IN ACCORDANCE WITH AND ARE CONTRARY TO
ESTABLISHED JURISPRUDENCE.5

The first two issues boil down to the question of whether respondent's sufferings were brought about
by petitioner's alleged negligence in granting authorization for the removal or retrieval of the internal
organs of respondent's son who had been declared brain dead.

Petitioner maintains that when he gave authorization for the removal of some of the internal organs
to be transplanted to other patients, he did so in accordance with the letter of the law, Republic Act
(R.A.) No. 349, as amended by Presidential Decree (P.D.) 856, i.e., giving his subordinates
instructions to exert all reasonable efforts to locate the relatives or next of kin of respondent's son. In
fact, announcements were made through radio and television, the assistance of police authorities
was sought, and the NBI Medico-Legal Section was notified. Thus, petitioner insists that he should
not be held responsible for any damage allegedly suffered by respondent due to the death of her son
and the removal of her son’s internal organs for transplant purposes.

The appellate court affirmed the trial court's finding that there was negligence on petitioner's part
when he failed to ensure that reasonable time had elapsed to locate the relatives of the deceased
before giving the authorization to remove said deceased's internal organs for transplant purposes.
However, a close examination of the records of this case would reveal that this case falls under one
of the exceptions to the general rule that factual findings of the trial court, when affirmed by the
appellate court, are binding on this Court. There are some important circumstances that the lower
courts failed to consider in ascertaining whether it was the actions of petitioner that brought about
the sufferings of respondent.6

The Memorandum dated March 3, 1988 issued by petitioner, stated thus:

As shown by the medical records, the said patient died on March 3, 1988 at 9:10 in the morning due
to craniocerebral injury. Please make certain that your Department has exerted all reasonable efforts
to locate the relatives or next-of-kin of the said deceased patient, such as appeal through the radios
and television, as well as through police and other government agencies and that the NBI [Medico-
Legal] Section has been notified and is aware of the case.

If all the above has been complied with, in accordance with the provisions of Republic Act No. 349
as amended and P.D. 856, permission and/or authority is hereby given to the Department of Surgery
to retrieve and remove the kidneys, pancreas, liver and heart of the said deceased patient and to
transplant the said organs to any compatible patient who maybe in need of said organs to live and
survive.7

A careful reading of the above shows that petitioner instructed his subordinates to "make certain"
that "all reasonable efforts" are exerted to locate the patient's next of kin, even enumerating ways in
which to ensure that notices of the death of the patient would reach said relatives. It also clearly
stated that permission or authorization to retrieve and remove the internal organs of the deceased
was being given ONLY IF the provisions of the applicable law had been complied with. Such
instructions reveal that petitioner acted prudently by directing his subordinates to exhaust all
reasonable means of locating the relatives of the deceased. He could not have made his directives
any clearer. He even specifically mentioned that permission is only being granted IF the Department
of Surgery has complied with all the requirements of the law. Verily, petitioner could not have been
faulted for having full confidence in the ability of the doctors in the Department of Surgery to
comprehend the instructions, obeying all his directives, and acting only in accordance with the
requirements of the law.

Furthermore, as found by the lower courts from the records of the case, the doctors and personnel of
NKI disseminated notices of the death of respondent's son to the media and sought the assistance
of the appropriate police authorities as early as March 2, 1988, even before petitioner issued the
Memorandum. Prior to performing the procedure for retrieval of the deceased's internal organs, the
doctors concerned also the sought the opinion and approval of the Medico-Legal Officer of the NBI.

Thus, there can be no cavil that petitioner employed reasonable means to disseminate notifications
intended to reach the relatives of the deceased. The only question that remains pertains to the
sufficiency of time allowed for notices to reach the relatives of the deceased.

If respondent failed to immediately receive notice of her son's death because the notices did not
properly state the name or identity of the deceased, fault cannot be laid at petitioner's door. The trial
and appellate courts found that it was the EAMC, who had the opportunity to ascertain the name of
the deceased, who recorded the wrong information regarding the deceased's identity to NKI. The
NKI could not have obtained the information about his name from the patient, because as found by
the lower courts, the deceased was already unconscious by the time he was brought to the NKI.

Ultimately, it is respondent's failure to adduce adequate evidence that doomed this case. As stated
1âw phi 1

in Otero v. Tan,8 "[i]n civil cases, it is a basic rule that the party making allegations has the burden of
proving them by a preponderance of evidence. The parties must rely on the strength of their own
evidence and not upon the weakness of the defense offered by their opponent."9 Here, there is to
proof that, indeed, the period of around 24 hours from the time notices were disseminated, cannot
be considered as reasonable under the circumstances. They failed to present any expert witness to
prove that given the medical technology and knowledge at that time in the 1980's, the doctors could
or should have waited longer before harvesting the internal organs for transplantation.

Verily, the Court cannot, in conscience, agree with the lower court. Finding petitioner liable for
damages is improper. It should be emphasized that the internal organs of the deceased were
removed only after he had been declared brain dead; thus, the emotional pain suffered by
respondent due to the death of her son cannot in any way be attributed to petitioner. Neither can the
Court find evidence on record to show that respondent's emotional suffering at the sight of the pitiful
state in which she found her son's lifeless body be categorically attributed to petitioner's conduct.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals, dated March 31,
2006, is REVERSED and SET ASIDE. The complaint against petitioner is hereby DISMISSED.

SO ORDERED.

[G.R. No. 129792. December 21, 1999]

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA

PANELO, Petitioners, v. HONORABLE COURT OF APPEALS, CONRADO C.
AGUILAR and CRISELDA R. AGUILAR, Respondents.

DECISION

DAVIDE, JR., C.J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court,
petitioners seek the reversal of the 17 June 1996 decision1 of the Court of Appeals
in C.A. G.R. No. CV 37937 and the resolution2denying their motion for
reconsideration. The assailed decision set aside the 15 January 1992 judgment of
the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and
ordered petitioners to pay damages and attorneys fees to private respondents
Conrado and Criselda (CRISELDA) Aguilar.

Petitioner Jarco Marketing Corporation is the owner of Syvels Department Store,

Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the stores
branch manager, operations manager, and supervisor, respectively. Private
respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).

In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of
Syvels Department Store, Makati City. CRISELDA was signing her credit card slip at
the payment and verification counter when she felt a sudden gust of wind and
heard a loud thud. She looked behind her. She then beheld her daughter ZHIENETH
on the floor, her young body pinned by the bulk of the stores gift-wrapping
counter/structure. ZHIENETH was crying and screaming for help. Although shocked,
CRISELDA was quick to ask the assistance of the people around in lifting the
counter and retrieving ZHIENETH from the floor.3

ZHIENETH was quickly rushed to the Makati Medical Center where she was
operated on. The next day ZHIENETH lost her speech and thereafter communicated
with CRISELDA by writing on a magic slate. The injuries she sustained took their
toil on her young body. She died fourteen (14) days after the accident or on 22 May
1983, on the hospital bed. She was six years old.4
The cause of her death was attributed to the injuries she sustained. The provisional
medical certificate5 issued by ZHIENETHs attending doctor described the extent of
her injuries:

Diagnoses:

1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury

2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver

3. Rupture, stomach, anterior & posterior walls

4. Complete transection, 4th position, duodenum

5. Hematoma, extensive, retroperitoneal

6. Contusion, lungs, severe

CRITICAL

After the burial of their daughter, private respondents demanded upon petitioners
the reimbursement of the hospitalization, medical bills and wake and funeral
expenses6 which they had incurred. Petitioners refused to pay. Consequently,
private respondents filed a complaint for damages, docketed as Civil Case No. 7119
wherein they sought the payment of P157,522.86 for actual damages, P300,000 for
moral damages, P20,000 for attorneys fees and an unspecified amount for loss of
income and exemplary damages.

In their answer with counterclaim, petitioners denied any liability for the injuries
and consequent death of ZHIENETH. They claimed that CRISELDA was negligent in
exercising care and diligence over her daughter by allowing her to freely roam
around in a store filled with glassware and appliances. ZHIENETH too, was guilty of
contributory negligence since she climbed the counter, triggering its eventual
collapse on her. Petitioners also emphasized that the counter was made of sturdy
wood with a strong support; it never fell nor collapsed for the past fifteen years
since its construction.

Additionally, petitioner Jarco Marketing Corporation maintained that it observed the

diligence of a good father of a family in the selection, supervision and control of its
employees. The other petitioners likewise raised due care and diligence in the
performance of their duties and countered that the complaint was malicious for
which they suffered besmirched reputation and mental anguish. They sought the
dismissal of the complaint and an award of moral and exemplary damages and
attorneys fees in their favor.

In its decision7 the trial court dismissed the complaint and counterclaim after
finding that the preponderance of the evidence favored petitioners. It ruled that the
proximate cause of the fall of the counter on ZHIENETH was her act of clinging to it.
It believed petitioners witnesses who testified that ZHIENETH clung to the counter,
afterwhich the structure and the girl fell with the structure falling on top of her,
pinning her stomach. In contrast, none of private respondents witnesses testified
on how the counter fell. The trial court also held that CRISELDAs negligence
contributed to ZHIENETHs accident.

In absolving petitioners from any liability, the trial court reasoned that the counter
was situated at the end or corner of the 2nd floor as a precautionary measure
hence, it could not be considered as an attractive nuisance.8 The counter was
higher than ZHIENETH. It has been in existence for fifteen years. Its structure was
safe and well-balanced. ZHIENETH, therefore, had no business climbing on and
clinging to it.

Private respondents appealed the decision, attributing as errors of the trial court its
findings that: (1) the proximate cause of the fall of the counter was ZHIENETHs
misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH; (3) petitioners
were not negligent in the maintenance of the counter; and (4) petitioners were not
liable for the death of ZHIENETH.

Further, private respondents asserted that ZHIENETH should be entitled to the

conclusive presumption that a child below nine (9) years is incapable of
contributory negligence. And even if ZHIENETH, at six (6) years old, was already
capable of contributory negligence, still it was physically impossible for her to have
propped herself on the counter. She had a small frame (four feet high and seventy
pounds) and the counter was much higher and heavier than she was. Also, the
testimony of one of the stores former employees, Gerardo Gonzales, who
accompanied ZHIENETH when she was brought to the emergency room of the
Makati Medical Center belied petitioners theory that ZHIENETH climbed the counter.
Gonzales claimed that when ZHIENETH was asked by the doctor what she did,
ZHIENETH replied, [N]othing, I did not come near the counter and the counter just
fell on me.9 Accordingly, Gonzales testimony on ZHIENETHs spontaneous
declaration should not only be considered as part of res gestae but also accorded
credit.

Moreover, negligence could not be imputed to CRISELDA for it was reasonable for
her to have let go of ZHIENETH at the precise moment that she was signing the
credit card slip.

Finally, private respondents vigorously maintained that the proximate cause of

ZHIENETHs death, was petitioners negligence in failing to institute measures to
have the counter permanently nailed.

On the other hand, petitioners argued that private respondents raised purely factual
issues which could no longer be disturbed. They explained that ZHIENETHs death
while unfortunate and tragic, was an accident for which neither CRISELDA nor even
ZHIENETH could entirely be held faultless and blameless. Further, petitioners
adverted to the trial courts rejection of Gonzales testimony as unworthy of
credence.

As to private respondents claim that the counter should have been nailed to the
ground, petitioners justified that it was not necessary. The counter had been in
existence for several years without any prior accident and was deliberately placed
at a corner to avoid such accidents. Truth to tell, they acted without fault or
negligence for they had exercised due diligence on the matter. In fact, the criminal
case10 for homicide through simple negligence filed by private respondents against
the individual petitioners was dismissed; a verdict of acquittal was rendered in their
favor.

The Court of Appeals, however, decided in favor of private respondents and

reversed the appealed judgment. It found that petitioners were negligent in
maintaining a structurally dangerous counter. The counter was shaped like an
inverted L11 with a top wider than the base. It was top heavy and the weight of the
upper portion was neither evenly distributed nor supported by its narrow base.
Thus, the counter was defective, unstable and dangerous; a downward pressure on
the overhanging portion or a push from the front could cause the counter to fall.
Two former employees of petitioners had already previously brought to the
attention of the management the danger the counter could cause. But the latter
ignored their concern. The Court of Appeals faulted the petitioners for this omission,
and concluded that the incident that befell ZHIENETH could have been avoided had
petitioners repaired the defective counter. It was inconsequential that the counter
had been in use for some time without a prior incident.

The Court of Appeals declared that ZHIENETH, who was below seven (7) years old
at the time of the incident, was absolutely incapable of negligence or other tort. It
reasoned that since a child under nine (9) years could not be held liable even for an
intentional wrong, then the six-year old ZHIENETH could not be made to account
for a mere mischief or reckless act. It also absolved CRISELDA of any negligence,
finding nothing wrong or out of the ordinary in momentarily allowing ZHIENETH to
walk while she signed the document at the nearby counter.

The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It
found them biased and prejudiced. It instead gave credit to the testimony of
disinterested witness Gonzales. The Court of Appeals then awarded P99,420.86 as
actual damages, the amount representing the hospitalization expenses incurred by
private respondents as evidenced by the hospital's statement of account.12 It
denied an award for funeral expenses for lack of proof to substantiate the same.
Instead, a compensatory damage of P50,000 was awarded for the death of
ZHIENETH.

We quote the dispositive portion of the assailed decision,13 thus:

WHEREFORE, premises considered, the judgment of the lower court is SET

ASIDE and another one is entered against [petitioners], ordering them to pay
jointly and severally unto [private respondents] the following:
 1. P50,000.00 by way of compensatory damages for the death of Zhieneth
Aguilar, with legal interest (6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses incurred; with
legal interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorneys fees; and
5. Costs.

Private respondents sought a reconsideration of the decision but the same was
denied in the Court of Appeals resolution14 of 16 July 1997.

Petitioners now seek the reversal of the Court of Appeals decision and the
reinstatement of the judgment of the trial court. Petitioners primarily argue that the
Court of Appeals erred in disregarding the factual findings and conclusions of the
trial court. They stress that since the action was based on tort, any finding of
negligence on the part of the private respondents would necessarily negate their
claim for damages, where said negligence was the proximate cause of the injury
sustained. The injury in the instant case was the death of ZHIENETH. The
proximate cause was ZHIENETHs act of clinging to the counter. This act in turn
caused the counter to fall on her. This and CRISELDAs contributory negligence,
through her failure to provide the proper care and attention to her child while inside
the store, nullified private respondents claim for damages. It is also for these
reasons that parents are made accountable for the damage or injury inflicted on
others by their minor children. Under these circumstances, petitioners could not be
held responsible for the accident that befell ZHIENETH.

Petitioners also assail the credibility of Gonzales who was already separated from
Syvels at the time he testified; hence, his testimony might have been tarnished by
ill-feelings against them.

For their part, private respondents principally reiterated their arguments that
neither ZHIENETH nor CRISELDA was negligent at any time while inside the store;
the findings and conclusions of the Court of Appeals are substantiated by the
evidence on record; the testimony of Gonzales, who heard ZHIENETH comment on
the incident while she was in the hospitals emergency room should receive
credence; and finally, ZHIENETHs part of the res gestae declaration that she did
nothing to cause the heavy structure to fall on her should be considered as the
correct version of the gruesome events.

We deny the petition.

The two issues to be resolved are: (1) whether the death of ZHIENETH was
accidental or attributable to negligence; and (2) in case of a finding of negligence,
whether the same was attributable to private respondents for maintaining a
defective counter or to CRISELDA and ZHIENETH for failing to exercise due and
reasonable care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or negligence
attaches to the defendant.15 It is a fortuitous circumstance, event or happening; an
event happening without any human agency, or if happening wholly or partly
through human agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens.16

On the other hand, negligence is the omission to do something which a reasonable

man, guided by those considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something which a prudent and reasonable
man would not do.17 Negligence is the failure to observe, for the protection of the
interest of another person, that degree of care, precaution and vigilance which the
circumstances justly demand, whereby such other person suffers injury.18

Accident and negligence are intrinsically contradictory; one cannot exist with the
other. Accident occurs when the person concerned is exercising ordinary care,
which is not caused by fault of any person and which could not have been
prevented by any means suggested by common prudence.19

The test in determining the existence of negligence is enunciated in the landmark

case of Picart v. Smith,20 thus: 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? If not, then he is guilty of negligence.21

We rule that the tragedy which befell ZHIENETH was no accident and that
ZHIENETHs death could only be attributed to negligence.

We quote the testimony of Gerardo Gonzales who was at the scene of the incident
and accompanied CRISELDA and ZHIENETH to the hospital:

Q While at the Makati Medical Center, did you hear or notice anything while the
child was being treated?

A At the emergency room we were all surrounding the child. And when the
doctor asked the child what did you do, the child said nothing, I did not come
near the counter and the counter just fell on me.

Q (COURT TO ATTY. BELTRAN)

You want the words in Tagalog to be translated?

ATTY. BELTRAN

Yes, your Honor.

COURT

Granted. Intercalate wala po, hindi po ako lumapit doon. Basta bumagsak.22
This testimony of Gonzales pertaining to ZHIENETHs statement formed (and should
be admitted as) part of the res gestae under Section 42, Rule 130 of the Rules of
Court, thus:

Part of res gestae. Statements made by a person while a startling occurrence is

taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the res gestae. So,
also, statements accompanying an equivocal act material to the issue, and
giving it a legal significance, may be received as part of the res gestae.

It is axiomatic that matters relating to declarations of pain or suffering and

statements made to a physician are generally considered declarations and
admissions.23 All that is required for their admissibility as part of the res gestae is
that they be made or uttered under the influence of a startling event before the
declarant had the time to think and concoct a falsehood as witnessed by the person
who testified in court. Under the circumstances thus described, it is unthinkable for
ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor
whom she trusted with her life. We therefore accord credence to Gonzales
testimony on the matter, i.e., ZHIENETH performed no act that facilitated her tragic
death. Sadly, petitioners did, through their negligence or omission to secure or
make stable the counters base.

Gonzales earlier testimony on petitioners insistence to keep and maintain the

structurally unstable gift-wrapping counter proved their negligence, thus:

Q When you assumed the position as gift wrapper at the second floor, will you
please describe the gift wrapping counter, were you able to examine?

A Because every morning before I start working I used to clean that counter
and since it is not nailed and it was only standing on the floor, it was shaky.

xxx

Q Will you please describe the counter at 5:00 oclock [sic] in the afternoon on
[sic] May 9 1983?

A At that hour on May 9, 1983, that counter was standing beside the verification
counter. And since the top of it was heavy and considering that it was not
nailed, it can collapse at anytime, since the top is heavy.

xxx

Q And what did you do?

A I informed Mr. Maat about that counter which is [sic] shaky and since Mr.
Maat is fond of putting display decorations on tables, he even told me that I
would put some decorations. But since I told him that it not [sic] nailed and it is
shaky he told me better inform also the company about it. And since the
company did not do anything about the counter, so I also did not do anything
about the counter.24 [Emphasis supplied]

Ramon Guevarra, another former employee, corroborated the testimony of

Gonzales, thus:

Q Will you please described [sic] to the honorable Court the counter where you
were assigned in January 1983?

xxx

A That counter assigned to me was when my supervisor ordered me to carry

that counter to another place. I told him that the counter needs nailing and it
has to be nailed because it might cause injury or accident to another since it
was shaky.

Q When that gift wrapping counter was transferred at the second floor on
February 12, 1983, will you please describe that to the honorable Court?

A I told her that the counter wrapper [sic] is really in good [sic] condition; it
was shaky. I told her that we had to nail it.

Q When you said she, to whom are you referring to [sic]?

A I am referring to Ms. Panelo, sir.

Q And what was the answer of Ms. Panelo when you told her that the counter
was shaky?

A She told me Why do you have to teach me. You are only my subordinate and
you are to teach me? And she even got angry at me when I told her that.

xxx

Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or
any employee of the management do to that (sic)

xxx

Witness:

None, sir. They never nailed the counter. They only nailed the counter after the
accident happened.25 [Emphasis supplied]

Without doubt, petitioner Panelo and another store supervisor were personally
informed of the danger posed by the unstable counter. Yet, neither initiated any
concrete action to remedy the situation nor ensure the safety of the stores
employees and patrons as a reasonable and ordinary prudent man would have
done. Thus, as confronted by the situation petitioners miserably failed to discharge
the due diligence required of a good father of a family.

On the issue of the credibility of Gonzales and Guevarra, petitioners failed to

establish that the formers testimonies were biased and tainted with partiality.
Therefore, the allegation that Gonzales and Guevarras testimonies were blemished
by ill feelings against petitioners since they (Gonzales and Guevarra) were already
separated from the company at the time their testimonies were offered in court was
but mere speculation and deserved scant consideration.

It is settled that when the issue concerns the credibility of witnesses, the appellate
courts will not as a general rule disturb the findings of the trial court, which is in a
better position to determine the same. The trial court has the distinct advantage of
actually hearing the testimony of and observing the deportment of the
witnesses.26 However, the rule admits of exceptions such as when its evaluation
was reached arbitrarily or it overlooked or failed to appreciate some facts or
circumstances of weight and substance which could affect the result of the
case.27 In the instant case, petitioners failed to bring their claim within the
exception.

Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption

that favors children below nine (9) years old in that they are incapable of
contributory negligence. In his book,28 former Judge Cezar S. Sangco stated:

In our jurisdiction, a person under nine years of age is conclusively presumed to

have acted without discernment, and is, on that account, exempt from criminal
liability. The same presumption and a like exemption from criminal liability
obtains in a case of a person over nine and under fifteen years of age, unless it
is shown that he has acted with discernment. Since negligence may be a felony
and a quasi-delict and required discernment as a condition of liability, either
criminal or civil, a child under nine years of age is, by analogy, conclusively
presumed to be incapable of negligence; and that the presumption of lack of
discernment or incapacity for negligence in the case of a child over nine but
under fifteen years of age is a rebuttable one, under our law. The rule,
therefore, is that a child under nine years of age must be conclusively presumed
incapable of contributory negligence as a matter of law. [Emphasis supplied]

Even if we attribute contributory negligence to ZHIENETH and assume that she

climbed over the counter, no injury should have occurred if we accept petitioners
theory that the counter was stable and sturdy. For if that was the truth, a frail six-
year old could not have caused the counter to collapse. The physical analysis of the
counter by both the trial court and Court of Appeals and a scrutiny of the
evidence29on record reveal otherwise, i.e., it was not durable after all. Shaped like
an inverted L, the counter was heavy, huge, and its top laden with formica. It
protruded towards the customer waiting area and its base was not secured.30
CRISELDA too, should be absolved from any contributory negligence. Initially,
ZHIENETH held on to CRISELDAs waist, later to the latters hand.31 CRISELDA
momentarily released the childs hand from her clutch when she signed her credit
card slip. At this precise moment, it was reasonable and usual for CRISELDA to let
go of her child. Further, at the time ZHIENETH was pinned down by the counter,
she was just a foot away from her mother; and the gift-wrapping counter was just
four meters away from CRISELDA.32 The time and distance were both significant.
ZHIENETH was near her mother and did not loiter as petitioners would want to
impress upon us. She even admitted to the doctor who treated her at the hospital
that she did not do anything; the counter just fell on her.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the
challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV
37937 is hereby AFFIRMED.

Costs against petitioners.

SO ORDERED.

G.R. No. 164749, March 15, 2017

ROMULO ABROGAR AND ERLINDA ABROGAR, Petitioners, v. COSMOS

BOTTLING COMPANY AND INTERGAMES, INC., Respondents.

DECISION

BERSAMIN, J.:

This case involves a claim for damages arising from the negligence causing the
death of a participant in an organized marathon bumped by a passenger jeepney on
the route of the race. The issues revolve on whether the organizer and the sponsor
of the marathon were guilty of negligence, and, if so, was their negligence the
proximate cause of the death of the participant; on whether the negligence of the
driver of the passenger jeepney was an efficient intervening cause; on whether the
doctrine of assumption of risk was applicable to the fatality; and on whether the
heirs of the fatality can recover damages for loss of earning capacity of the latter
who, being then a minor, had no gainful employment.

The Case

By this appeal, the parents of the late Rommel Abrogar (Rommel), a marathon
runner, seek the review and reversal of the decision promulgated on March 10,
2004,1 whereby the Court of Appeals (CA) reversed and set aside the judgment
rendered in their favor on May 10, 1991 by the Regional Trial Court (RTC), Branch
83, in Quezon City2 finding and declaring respondents Cosmos Bottling Company
(Cosmos), a domestic soft-drinks company whose products included Pop Cola, and
Intergames, Inc. (Intergames), also a domestic corporation organizing and
supervising the “1st Pop Cola Junior Marathon" held on June 15, 1980 in Quezon
City, solidarily liable for damages arising from the untimely death of Rommel, then
a minor 18 years of age,3 after being bumped by a recklessly driven passenger
jeepney along the route of the marathon.

Antecedents

The CA narrated the antecedents in the assailed judgment,4 viz.:

[T]o promote the sales of "Pop Cola", defendant Cosmos, jointly with Intergames,
organized an endurance running contest billed as the "1st Pop Cola Junior
Marathon" scheduled to be held on June 15, 1980. The organizers plotted a 10-
kilometer course starting from the premises of the Interim Batasang Pambansa
(IBP for brevity), through public roads and streets, to end at the Quezon Memorial
Circle. Plaintiffs' son Rommel applied with the defendants to be allowed to
participate in the contest and after complying with defendants' requirements, his
application was accepted and he was given an official number. Consequently, on
June 15, 1980 at the designated time of the marathon, Rommel joined the other
participants and ran the course plotted by the defendants. As it turned out, the
plaintiffs' (sic) further alleged, the defendants failed to provide adequate safety and
precautionary measures and to exercise the diligence required of them by the
nature of their undertaking, in that they failed to insulate and protect the
participants of the marathon from the vehicular and other dangers along the
marathon route. Rommel was bumped by a jeepney that was then running along
the route of the marathon on Don Mariano Marcos Avenue (DMMA for brevity), and
in spite of medical treatment given to him at the Ospital ng Bagong Lipunan, he
died later that same day due to severe head injuries.

On October 28, 1980, the petitioners sued the respondents in the then Court of
First Instance of Rizal (Quezon City) to recover various damages for the untimely
death of Rommel (i.e., actual and compensatory damages, loss of earning capacity,
moral damages, exemplary damages, attorney's fees and expenses of litigation).5

Cosmos denied liability, insisting that it had not been the organizer of the
marathon, but only its sponsor; that its participation had been limited to providing
financial assistance to Intergames;6 that the financial assistance it had extended to
Intergames, the sole organizer of the marathon, had been in answer to the
Government's call to the private sector to help promote sports development and
physical fitness;7 that the petitioners had no cause of action against it because
there was no privity of contract between the participants in the marathon and
Cosmos; and that it had nothing to do with the organization, operation and running
of the event.8

As counterclaim, Cosmos sought attorney's fees and expenses of litigation from the
petitioners for their being unwarrantedly included as a defendant in the case. It
averred a cross-claim against Intergames, stating that the latter had guaranteed to
hold Cosmos "completely free and harmless from any claim or action for liability for
any injuries or bodily harm which may be sustained by any of the entries in the
'1st Pop Cola Junior Marathon' or for any damage to the property or properties of
third parties, which may likewise arise in the course of the race."9 Thus, Cosmos
sought to hold Intergames solely liable should the claim of the petitioners prosper.10

On its part, Intergames asserted that Rommel's death had been an accident
exclusively caused by the negligence of the jeepney driver; that it was not
responsible for the accident; that as the marathon organizer, it did not assume the
responsibilities of an insurer of the safety of the participants; that it nevertheless
caused the participants to be covered with accident insurance, but the petitioners
refused to accept the proceeds thereof;11 that there could be no cause of action
against it because the acceptance and approval of Rommel's application to join the
marathon had been conditioned on his waiver of all rights and causes of action
arising from his participation in the marathon;12 that it exercised due diligence in
the conduct of the race that the circumstances called for and was appropriate, it
having availed of all its know-how and expertise, including the adoption and
implementation of all known and possible safety and precautionary measures in
order to protect the participants from injuries arising from vehicular and other
forms of accidents;13 and, accordingly, the complaint should be dismissed.

In their reply and answer to counterclaim, the petitioners averred that contrary to
its claims, Intergames did not provide adequate measures for the safety and
protection of the race participants, considering that motor vehicles were traversing
the race route and the participants were made to run along the flow of traffic,
instead of against it; that Intergames did not provide adequate traffic marshals to
secure the safety and protection of the participants;14 that Intergames could not
limit its liability on the basis of the accident insurance policies it had secured to
cover the race participants; that the waiver signed by Rommel could not be a basis
for denying liability because the same was null and void for being contrary to law,
morals, customs and public policy;15 that their complaint sufficiently stated a cause
of action because in no way could they be held liable for attorney's fees, litigation
expenses or any other relief due to their having abided by the law and having acted
honestly, fairly, in good faith by according to Intergames its due, as demanded by
the facts and circumstances.16

At the pre-trial held on April 12, 1981, the parties agreed that the principal issue
was whether or not Cosmos and Intergames were liable for the death of Rommel
because of negligence in conducting the marathon.17

Judgment of the RTC

In its decision dated May 10, 1991,18 the RTC ruled as follows:

WHEREFORE, judgment is hereby rendered in favor of plaintiffs-spouses Romulo

Abrogar and Erlinda Abrogar and against defendants Cosmos Bottling Company,
Inc. and Intergames, Inc., ordering both defendants, jointly and severally, to pay
and deliver to the plaintiffs the amounts of Twenty Eight Thousand Sixty One Pesos
and Sixty Three Centavos (P28,061.63) as actual damages; One Hundred Thousand
Pesos (P100,000.00) as moral damages; Fifty Thousand Pesos (P50,000.00) as
exemplary damages and Ten Percent (10%) of the total amount of One Hundred
Seventy Eight Thousand Sixty One Pesos and Sixty Three Centavos (P178,061,63)
or Seventeen Thousand Eight Hundred Six Pesos and Sixteen Centavos
(P17,806.16) as attorney's fees.

On the cross-claim of defendant Cosmos Bottling Company, Inc., defendant

Intergames, Inc, is hereby ordered to reimburse to the former any and all amounts
which may be recovered by the plaintiffs from it by virtue of this Decision.

SO ORDERED.

The RTC observed that the safeguards allegedly instituted by Intergames in

conducting the marathon had fallen short of the yardstick to satisfy the
requirements of due diligence as called for by and appropriate under the
circumstances; that the accident had happened because of inadequate preparation
and Intergames' failure to exercise due diligence;19 that the respondents could not
be excused from liability by hiding behind the waiver executed by Rommel and the
permission given to him by his parents because the waiver could only be effective
for risks inherent in the marathon, such as stumbling, heat stroke, heart attack
during the race, severe exhaustion and similar occurrences;20 that the liability of
the respondents towards the participants and third persons was solidary, because
Cosmos, the sponsor of the event, had been the principal mover of the event, and,
as such, had derived benefits from the marathon that in turn had carried
responsibilities towards the participants and the public; that the respondents'
agreement to free Cosmos from any liability had been an agreement binding only
between them, and did not bind third persons; and that Cosmos had a cause of
action against Intergames for whatever could be recovered by the petitioners from
Cosmos.21

Decision of the CA

All the parties appealed to the CA.

The petitioners contended that the RTC erred in not awarding damages for loss of
earning capacity on the part of Rommel for the reason that such damages were not
recoverable due to Rommel not yet having finished his schooling; and that it would
be premature to award such damages upon the assumption that he would finish
college and be gainfully employed.22

On their part, Cosmos and Intergames separately raised essentially similar errors
on the part of the RTC, to wit: (1) in holding them liable for the death of Rommel;
(2) in finding them negligent in conducting the marathon; (3) in holding that
Rommel and his parents did not assume the risks of the marathon; (4) in not
holding that the sole and proximate cause of the death of Rommel was the
negligence of the jeepney driver; and (5) in making them liable, jointly and
solidarily, for damages, attorney's fees and expenses of litigation.23

The CA reduced the issues to four, namely:

1. Whether or not appellant Intergames was negligent in its conduct of the "1st Pop
Cola Junior Marathon" held on June 15, 1980 and if so, whether its negligence was
the proximate cause of the death of Rommel Abrogar.

2. Whether or not appellant Cosmos can be held jointly and solidarity liable with
appellant Intergames for the death of Rommel Abrogar, assuming that appellant
Intergames is found to have been negligent in the conduct of the Pop Cola
marathon and such negligence was the proximate cause of the death of Rommel
Abrogar.

3. Whether or not the appellants Abrogar are entitled to be compensated for the
"loss of earning capacity" of their son Rommel.

4. Whether or not the appellants Abrogar are entitled to the actual, moral, and
exemplary damages granted to them by the Trial Court.24

In its assailed judgment promulgated on March 10, 2004,25 the CA ruled as follows:

As to the first issue, this Court finds that appellant Intergames was not negligent in
organizing the said marathon.

Negligence is the omission to do something which a reasonable man, guided upon

those considerations which ordinarily regulate the conduct to human affairs, would
do, or doing something which a prudent and reasonable man would not do.

The whole theory of negligence presuppose some uniform standard of behavior

which must be an external and objective one, rather than the individual judgment
good or bad, of the particular actor; it must be, as far as possible, the same for all
persons; and at the same time make proper allowance for the risk apparent to the
actor for his capacity to meet it, and for the circumstances under which he must
act.

The question as to what would constitute the conduct of a prudent man in a given
situation must of course be always determined in the light of human experience and
of the acts involved in the particular case.

In the case at bar, the trial court erred in finding that the appellant Intergames
failed to satisfy the requirements of due diligence in the conduct of the race.

The trial court in its decision said that the accident in question could have been
avoided if the route of the marathon was blocked off from the regular traffic,
instead of allowing the runners to run together with the flow of traffic. Thus, the
said court considered the appellant Intergames at fault for proceeding with the
marathon despite the fact that the Northern Police District, MPF, Quezon City did
not allow the road to be blocked off from traffic.
This Court finds that the standard of conduct used by the trial court is not the
ordinary conduct of a prudent man in such a given situation. According to the said
court, the only way to conduct a safe road race is to block off the traffic for the
duration of the event and direct the cars and public utilities to take alternative
routes in the meantime that the marathon event is being held. Such standard is too
high and is even inapplicable in the case at bar because, there is no alternative
route from IBP to Don Mariano Marcos to Quezon City Hall.

The Civil Code provides that if the law or contract does not state the diligence which
is to be observed in the performance of an obligation that which is expected of a
good father of the family shall only be required. Accordingly, appellant Intergames
is only bound to exercise the degree of care that would be exercised by an
ordinarily careful and prudent man in the same position and circumstances and not
that of the cautious man of more than average prudence. Hence, appellant
Intergames is only expected to observe ordinary diligence and not extraordinary
diligence.

In this case, the marathon was allowed by the Northern Police District, MPF,
Quezon City on the condition that the road should not be blocked off from traffic.
Appellant Intergames had no choice. It had to comply with it or else the said
marathon would not be allowed at all.

The trial court erred in contending that appellant Intergames should have looked
for alternative places in Metro Manila given the condition set by the Northern Police
District, MPF, Quezon City; precisely because as Mr. Jose Castro has testified the
said route was found to be the best route after a careful study and consideration of
all the factors involved. Having conducted several marathon events in said route,
appellant Intergames as well as the volunteer groups and the other agencies
involved were in fact familiar with the said route. And assuming that there was an
alternative place suitable for the said race, the question is would they be allowed to
block off the said road from traffic?

Also, the trial court erred in stating that there was no adequate number of
marshals, police officers and personnel to man the race so as to prevent injury to
the participants.

The general rule is that the party who relies on negligence for his cause of action
has the burden of proving the existence of the same, otherwise his action fails.

Here, the appellants-spouses failed to prove that there was inadequate number of
marshals, police officers, and personnel because they failed to prove what number
is considered adequate.

This court considers that seven (7) traffic operatives, five (5) motorcycle
policemen, fifteen (15) patrolmen deployed along the route, fifteen (15) boyscouts,
twelve (12) CATs, twenty (20) barangay tanods, three (3) ambulances and three
(3) medical teams were sufficient to stage a safe marathon.
Moreover, the failure of Mr. Jose R. Castro, Jr. to produce records of the lists of
those constituting the volunteer help during the marathon is not fatal to the case
considering that one of the volunteers, Victor Landingin of the Citizens Traffic Action
(CTA) testified in court that CTA fielded five units on June 15, 1980, assigned as
follows: (1) at the sphere head; (2) at the finish line; (3) tail ender;(4) & (5)
roving.

The trial court again erred in concluding that the admission of P/Lt. Jesus Lipana,
head of the traffic policemen assigned at the marathon, that he showed up only at
the finish line means that he did not bother to check on his men and did not give
them appropriate instructions. P/Lt. Lipana in his testimony explained that he did
not need to be in the start of the race because he had predesignated another
capable police officer to start the race.

In addition, this Court finds that the precautionary measures and preparations
adopted by appellant Intergames were sufficient considering the circumstances
surrounding the case.

Appellant Intergames, using its previous experiences in conducting safe and

successful road races, took all the necessary precautions and made all the
preparations for the race. The initial preparations included: determination of the
route to be taken; and an ocular inspection of the same to see if it was well-paved,
whether it had less corners for easy communication and coordination, and whether
it was wide enough to accommodate runners and transportation. Appellant
Intergames choose the Don Mariano Marcos Avenue primarily because it was well-
paved; had wide lanes to accommodate runners and vehicular traffic; had less
corners thus facilitating easy communication and coordination among the
organizers and cooperating agencies; and was familiar to the race organizers and
operating agencies. The race covered a ten-kilometer course from the IBP lane to
the Quezon City Hall Compound passing through the Don Mariano Marcos Avenue,
which constituted the main stretch of the route. Appellant Intergames scheduled
the marathon on a Sunday morning, when traffic along the route was at its lightest.
Permission was sought from the then Quezon City Mayor Adelina Rodriguez for the
use of the Quezon City Hall Grandstand and the street fronting it as the finish line.
Police assistance was also obtained to control and supervise the traffic. The Quezon
City Traffic Detachment took charge of traffic control by assigning policemen to the
traffic route. The particular unit assigned during the race underwent extensive
training and had been involved in past marathons, including marathons in highly
crowded areas. The Philippine Boy Scouts tasked to assist the police and monitor
the progress of the race; and Citizens Traffic Action Group tasked with the
monitoring of the race, which assigned five units consisting often operatives, to
provide communication and assistance were likewise obtained. Finally, medical
equipments and personnel were also requested from Camp Aguinaldo, the
Philippine Red Cross and the Hospital ng Bagong Lipunan.

Neither does this Court find the appellant Intergames' conduct of the marathon the
proximate cause of the death of Rommel Abrogar. Proximate cause has been
defined as that which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without which the result would not
have occurred.

It appears that Rommel Abrogar, while running on Don Mariano Marcos Avenue and
after passing the Philippine Atomic Energy Commission Building, was bumped by a
jeepney which apparently was racing against a minibus and the two vehicles were
trying to crowd each other. In fact, a criminal case was filed against the jeepney
driver by reason of his having killed Rommel Abrogar.

This proves that the death of Rommel Abrogar was caused by the negligence of the
jeepney driver. Rommel Abrogar cannot be faulted because he was performing a
legal act; the marathon was conducted with the permission and approval of all the
city officials involved. He had the right to be there. Neither can the appellant
Intergames be faulted, as the organizer of the said marathon, because it was not
negligent in conducting the marathon.

Given the facts of this case, We believe that no amount of precaution can prevent
such an accident. Even if there were fences or barriers to separate the lanes for the
runners and for the vehicles, it would not prevent such an accident in the event
that a negligent driver loses control of his vehicle. And even if the road was blocked
off from traffic, it would still not prevent such an accident, if a jeepney driver on the
other side of the road races with another vehicle loses control of his wheel and as a
result hits a person on the other side of the road. Another way of saying this is: A
defendant's tort cannot be considered a legal cause of plaintiff's damage if that
damage would have occurred just the same even though the defendant's tort had
not been committed.

This Court also finds the doctrine of assumption of risk applicable in the case at bar.
As explained by a well-known authority on torts:

"The general principle underlying the defense of assumption of risk is that a plaintiff
who voluntarily assumes a risk of harm arising from the negligent or reckless
conduct of the defendant cannot recover for such harm. The defense may arise
where a plaintiff, by contract or otherwise, expressly agrees to accept a risk or
harm arising from the defendant's conduct, or where a plaintiff who fully
understands a risk or harm caused by the defendant's conduct, or by a condition
created by the defendant, voluntarily chooses to enter or remain, or to permit his
property to enter or remain, within the area of such risk, under circumstances
manifesting his willingness to accept the risk.

xxxx

"Assumption of the risk in its primary sense arises by assuming through contract,
which may be implied, the risk of a known danger. Its essence is venturousness. It
implies intentional exposure to a known danger; It embraces a mental state of
willingness; It pertains to the preliminary conduct of getting into a dangerous
employment or relationship, it means voluntary incurring the risk of an accident,
which may or may not occur, and which the person assuming the risk may be
careful to avoid; and it defeats recovery because it is a previous abandonment of
the right to complain if an accident occurs.

"Of course, if the defense is predicated upon an express agreement the agreement
must be valid, and in the light of this qualification the rule has been stated that a
plaintiff who, by contract or otherwise, expressly agreed to accept a risk of harm
arising from the defendant's negligent or reckless conduct, cannot recover for such
harm unless the agreement is invalid as contrary to public policy.

xxxx

"The defense of assumption of risk presupposes: (1) that the plaintiff had actual
knowledge of the danger; (2) that he understood and appreciated the risk from the
danger; and (3) that he voluntarily exposed himself to such risk. x x x

"The term 'risk' as used in this connection applies to known dangers, and not to
things from which danger may possibly flow. The risk referred to is the particular
risk, or one of the risks, which the plaintiff accepted within the context of the
situation in which he placed himself and the question is whether the specific
conduct or condition which caused the injury was such a risk."

In this case, appellant Romulo Abrogar himself admitted that his son, Rommel
Abrogar, surveyed the route of the marathon and even attended a briefing before
the race. Consequently, he was aware that the marathon would pass through a
national road and that the said road would not be blocked off from traffic. And
considering that he was already eighteen years of age, had voluntarily participated
in the marathon, with his parents' consent, and was well aware of the traffic
hazards along the route, he thereby assumed all the risks of the race. This is
precisely why permission from the participant's parents, submission of a medical
certificate and a waiver of all rights and causes of action arising from the
participation in the marathon which the participant or his heirs may have against
appellant Intergames were required as conditions in joining the marathon.

In the decision of the trial court, it stated that the risk mentioned in the waiver
signed by Rommel Abrogar only involved risks such as stumbling, suffering
heatstroke, heart attack and other similar risks. It did not consider vehicular
accident as one of the risks included in the said waiver.

This Court does not agree. With respect to voluntary participation in a sport, the
doctrine of assumption of risk applies to any facet of the activity inherent in it and
to any open and obvious condition of the place where it is carried on. We believe
that the waiver included vehicular accidents for the simple reason that it was a road
race run on public roads used by vehicles. Thus, it cannot be denied that vehicular
accidents are involved. It was not a track race which is held on an oval and
insulated from vehicular traffic. In a road race, there is always the risk of runners
being hit by motor vehicles while they train or compete. That risk is inherent in the
sport and known to runners. It is a risk they assume every time they voluntarily
engage in their sport.
Furthermore, where a person voluntarily participates in a lawful game or contest,
he assumes the ordinary risks of such game or contest so as to preclude recovery
from the promoter or operator of the game or contest for injury or death resulting
therefrom. Proprietors of amusements or of places where sports and games are
played are not insurers of safety of the public nor of their patrons.

In Mc Leod Store v. Vinson 213 Ky 667, 281 SW 799 (1926), it was held that a boy,
seventeen years of age, of ordinary intelligence and physique, who entered a race
conducted by a department store, the purpose of which was to secure guinea fowl
which could be turned in for cash prizes, had assumed the ordinary risks incident
thereto and was barred from recovering against the department store for injuries
suffered when, within catching distance, he stopped to catch a guinea, and was
tripped or stumbled and fell to the pavement, six or eight others falling upon him.
The court further said: "In this (the race) he was a voluntary participant. xxx The
anticipated danger was as obvious to him as it was to appellant (the department
store). While not an adult, he was practically 17 years of age, of ordinary
intelligence, and perfectly able to determine the risks ordinarily incident to such
games. An ordinary boy of that age is practically as well advised as to the hazards
of baseball, basketball, football, foot races and other games of skill and endurance
as is an adult x x x."

In the case at bar, the "1st Pop Cola Junior Marathon" held on June 15, 1980 was a
race the winner of which was to represent the country in the annual Spirit of
Pheidippides Marathon Classic in Greece, if he equals or breaks the 29-minute mark
for the 10-km. race. Thus, Rommel Abrogar having voluntarily participated in the
race, with his parents' consent, assumed all the risks of the race.

Anent the second issue, this Court finds that appellant Cosmos must also be
absolved from any liability in the instant case.

This Court finds that the trial court erred in holding appellant Cosmos liable for
being the principal mover and resultant beneficiary of the event.

In its decision it said that in view of the fact that appellant Cosmos will be deriving
certain benefits from the marathon event, it has the responsibility to ensure the
safety of all the participants and the public. It further said that the stipulations in
the contract entered into by the two appellants, Cosmos and Intergames, relieving
the former from any liability does not bind third persons.

This Court does not agree with the reasoning of the trial court. The sponsorship
contract entered between appellant Cosmos and appellant Intergames specifically
states that:

1. COSMOS BOTTLING CORPORATION shall pay INTERGAMES the amount of FIFTY

FIVE THOUSAND PESOS (P55,000.00) representing full sponsorship fee and in
consideration thereof, INTERGAMES shall organize and stage a marathon race to be
called '1st POP COLA JUNIOR MARATHON.
xxxx

3. INTERGAMES shall draw up all the rules of the marathon race, eligibility
requirements of participants as well as provide all the staff required in the
organization and actual staging of the race. It is understood that all said staff shall
be considered under the direct employ of INTERGAMES which shall have full control
over them.

xxxx

5. INTERGAMES shall secure all the necessary permits, clearances, traffic and police
assistance in all the areas covered by the entire route of the '1st POP COLA JUNIOR
MARATHON.

12. INTERGAMES shall hold COSMOS BOTTLING CORPORATION, completely free

and harmless from any claim or action for liability for any injuries or bodily harm
which may be sustained by any of the entries in the '1st POP COLA JUNIOR
MARATHON', or for any damages to the property or properties of third parties,
which may likewise arise in the course of the race.

From the foregoing, it is crystal clear that the role of the appellant Cosmos was
limited to providing financial assistance in the form of sponsorship. Appellant
Cosmos' sponsorship was merely in pursuance to the company's commitment for
sports development of the youth as well as for advertising purposes. The use of the
name Cosmos was done for advertising purposes only; it did not mean that it was
an organizer of the said marathon. As pointed out by Intergames' President, Jose
Castro Jr., appellant Cosmos did not even have the right to suggest the location
and the number of runners.

To hold a defendant liable for torts, it must be clearly shown that he is the
proximate cause of the harm done to the plaintiff. The nexus or connection of the
cause and effect, between a negligent act and the damage done, must be
established by competent evidence.

In this case, appellant Cosmos was not negligent in entering into a contract with
the appellant Intergames considering that the record of the latter was clean and
that it has conducted at least thirty (30) road races.

Also there is no direct or immediate causal connection between the financial

sponsorship and the death of Rommel Abrogar. The singular act of providing
financial assistance without participating in any manner in the conduct of the
marathon cannot be palmed off as such proximate cause. In fact, the appellant
spouses never relied on any representation that Cosmos organized the race. It was
not even a factor considered by the appellants-spouses in allowing their son to join
said marathon.

In view of the fact that both defendants are not liable for the death of Rommel
Abrogar, appellants-spouses are not entitled to actual, moral, exemplary damages
as well as for the "loss of earning capacity" of their son. The third and fourth issues
are thus moot and academic.

UPON THE VIEW WE TAKE OF THIS CASE, THUS, the judgment appealed from
must be, as it hereby is, REVERSED and SET ASIDE, and another
entered DISMISSING the complaint a quo. The appellants shall bear their
respective costs.

SO ORDERED.26

Issues

In this appeal, the petitioners submit that the CA gravely erred:

A.

x x x in reversing the RTC Decision, (and) in holding that respondent Intergames

was not negligent considering that:

1. Respondent Intergames failed to exercise the diligence of a good father of the

family in the conduct of the marathon in that it did not block off from traffic the
marathon route; and

2. Respondent Intergames' preparations for the race, including the number of

marshal during the marathon, were glaringly inadequate to prevent the happening
of the injury to its participants.

B.

x x x in reversing the RTC Decision, (and) in holding that the doctrine of

assumption of risk finds application to the case at bar even though getting hit or
run over by a vehicle is not an inherent risk in a marathon race. Even
assuming arguendo that deceased Abrogar made such waiver as claimed, still there
can be no valid waiver of one's right to life and limb for being against public policy.

C.

x x x in reversing the RTC Decision, (and) in absolving respondent Cosmos from

liability to petitioners on the sole ground that respondent Cosmos' contract with
respondent Intergames contained a stipulation exempting the former from liability.

D.

x x x in reversing the RTC Decision and consequently holding respondents free from
liability, (and) in not awarding petitioners with actual, moral and exemplary
damages for the death of their child, Rommel Abrogar.27
 Ruling of the Court

The appeal is partly meritorious.

I
Review of factual issues is allowed because of
the conflict between the findings of fact
by the RTC and the CA on the issue of negligence

The petitioners contend that Intergames was negligent; that Cosmos as the sponsor
and Intergames as the organizer of the marathon both had the obligation to provide
a reasonably safe place for the conduct of the race by blocking the route of the race
from vehicular traffic and by providing adequate manpower and personnel to
ensure the safety of the participants; and that Intergames had foreseen the harm
posed by the situation but had not exercised the diligence of a good father of a
family to avoid the risk;28 hence, for such omission, Intergames was negligent.29

Refuting, Cosmos and Intergames submit that the latter as the organizer was not
negligent because it had undertaken all the precautionary measures to ensure the
safety of the race; and that there was no duty on the part of the latter as the
organizer to keep a racecourse "free and clear from reasonably avoidable elements
that would [occasion] or have the probable tendency, to occasion injury."30

The issue of whether one or both defendants were negligent is a mixed issue of fact
and law. Does this not restrict the Court against reviewing the records in this
appeal on certiorari in order to settle the issue?

The Court can proceed to review the factual findings of the CA as an exception to
the general rule that it should not review issues of fact on appeal on certiorari. We
have recognized exceptions to the rule that the findings of fact of the CA are
conclusive and binding in the following instances: (1) when the findings are
grounded entirely on speculation, surmises or conjectures; (2) when the inference
made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse
of discretion; (4) when the judgment is based on a misapprehension of facts; (5)
when the findings of facts are conflicting; (6) when in making its findings the CA
went beyond the issues of the case, or its findings are contrary to the admissions of
both the appellant and the appellee; (7) when the findings are contrary to the trial
court; (8) when the findings are conclusions without citation of specific evidence on
which they are based; (9) when the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the respondent; (10) when
the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; and (11) when the CA manifestly
overlooked certain relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion.31 Considering that the CA arrived at
factual findings contrary to those of the trial court, our review of the records in this
appeal should have to be made.
Negligence is the failure to observe for the protection of the interests of another
person that degree of care, precaution, and vigilance which the circumstances justly
demand, whereby such other person suffers injury.32 Under Article 1173 of the Civil
Code, it consists of the "omission of that diligence which is required by the nature
of the obligation and corresponds with the circumstances of the person, of the time
and of the place.”33 The Civil Code makes liability for negligence clear under Article
2176,34 and Article 20.35

To determine the existence of negligence, the following time-honored test has been
set in Picart v. Smith:36

The test by which to determine the existence of negligence in a particular case may
be stated as follows: 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? If not, then he is guilty of negligence. The
law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. The existence of negligence
in a given case is not determined by reference to the personal judgment of the
actor in the situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and prudence and
determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given
situation must of course be always determined in the light of human experience and
in view of the facts involved in the particular case. Abstract speculation cannot here
be of much value but this much can be profitably said: Reasonable men govern
their conduct by the circumstances which are before them or known to them. They
are not, and are not supposed to be, omniscient of the future. Hence they can be
expected to take care only when there is something before them to suggest or warn
of danger. Could a prudent man, in the case under consideration, foresee
harm as a result of the course actually pursued? If so, it was the duty of
the actor to take precautions to guard against that harm. Reasonable
foresight of harm, followed by the ignoring of the suggestion born of this
prevision, is always necessary before negligence can be held to exist.
Stated in these terms, the proper criterion for determining the existence of
negligence in a given case is this: Conduct is said to be negligent when a
prudent man in the position of the tortfeasor would have foreseen that an
effect harmful to another was sufficiently probable to warrant his
foregoing the conduct or guarding against its consequences.37 (bold
underscoring supplied for emphasis)

A careful review of the evidence presented, particularly the testimonies of the

relevant witnesses, in accordance with the foregoing guidelines reasonably leads to
the conclusion that the safety and precautionary measures undertaken by
Intergames were short of the diligence demanded by the circumstances of persons,
time and place under consideration. Hence, Intergames as the organizer was guilty
of negligence.
The race organized by Intergames was a junior marathon participated in by young
persons aged 14 to 18 years. It was plotted to cover a distance of 10 kilometers,
starting from the IBP Lane,38 then going towards the Batasang Pambansa, and on
to the circular route towards the Don Mariano Marcos Highway,39 and then all the
way back to the Quezon City Hall compound where the finish line had been set.40 In
staging the event, Intergames had no employees of its own to man the race,41 and
relied only on the "cooperating agencies" and volunteers who had worked with it in
previous races.42 The cooperating agencies included the Quezon City police,
barangay tanods, volunteers from the Boy Scouts of the Philippines, the Philippine
National Red Cross, the Citizens Traffic Action Group, and the medical teams of
doctors and nurses coming from the Office of the Surgeon General and the Ospital
ng Bagong Lipunan.43 According to Jose R. Castro, Jr., the President of Intergames,
the preparations for the event included conducting an ocular inspection of the route
of the race,44 sending out letters to the various cooperating agencies,45 securing
permits from proper authorities,46 putting up directional signs,47 and setting up the
water stations.48

We consider the "safeguards" employed and adopted by Intergames not adequate

to meet the requirement of due diligence.

For one, the police authorities specifically prohibited Intergames from blocking Don
Mariano Marcos Highway in order not to impair road accessibility to the residential
villages located beyond the IBP Lane.49 However, contrary to the findings of the
CA,50 Intergames had a choice on where to stage the marathon, considering its
admission of the sole responsibility for the conduct of the event, including the
choice of location.

Moreover, the CA had no basis for holding that "the said route was found to be the
best route after a careful study and consideration of all the factors
involved."51 Castro, Jr. himself attested that the route had been the best one
only within the vicinity of the Batasan Pambansa, to wit:

COURT

q Was there any specific reason from... Was there any specific reason why you used this
route from Batasan to City Hall? Was there any special reason?

a We have, your Honor, conducted for example the Milo Marathon in that area in the
Batasan Pambansa and we found it to be relatively safer than any other areas within
the vicinity. As a matter of fact, we had more runners in the Milo Marathon at that time
and nothing happened, your Honor.52

The chosen route (IBP Lane, on to Don Mariano Marcos Highway, and then to
Quezon City Hall) was not the only route appropriate for the marathon. In fact,
Intergames came under no obligation to use such route especially considering that
the participants, who were young and inexperienced runners, would be running
alongside moving vehicles.
Intergames further conceded that the marathon could have been staged on a
blocked-off route like Roxas Boulevard in Manila where runners could run against
the flow of vehicular traffic.53 Castro, Jr. stated in that regard:

COURT TO WITNESS

q What law are you talking about when you say I cannot violate the law?
a The police authority, your Honor, would not grant us permit because that is one of the
conditions that if we are to conduct a race we should run the race in accordance with the
flow of traffic.

q Did you not inform the police this is in accordance with the standard safety measures for
a marathon race?
a I believed we argued along that line but but (sic) again, if we insist the police again
would not grant us any permit like...except in the case of Roxas Boulevard when it is
normally closed from 8 a.m. when you can run against the flow of traffic.

q You were aware for a runner to run on the same route of the traffic would be risky
because he would not know what is coming behind him?
a I believed we talked of the risk, your Honor when the risk has been minimized to a
certain level. Yes, there is greater risk when you run with the traffic than when you run
against the traffic to a certain level, it is correct but most of the races in Manila or
elsewhere are being run in accordance with the flow of the traffic.

xxxx
ATTY. VINLUAN

q Following the observation of the Court, considering the local condition, you will agree
with me the risks here are greater than in the United States where drivers on the whole
follow traffic rules?
a That is correct.

q And because of that fact, it is with all the more reason that you should take all necessary
precautions to insure the safety of the runners?
a That is correct.54

xxxx

COURT:
 xxxx

Q In your case in all the marathons that you had managed, how many cases have you
encountered where the routes are blocked off for vehicular traffic?
A These are the International Marathon, Philippines Third World Marathon and the Milo
Marathon. We are blocking them to a certain length of time.

Q What was the purpose of blocking the routes? Is it for the safety of the runners or just a
matter of convenience?
A In blocking off the route, Your Honor, it is light easier for the runners to run without
impediments to be rendered by the people or by vehicles and at the same time it would be
also advantageous if the road will be blocked off for vehicle traffic permitted to us by the
traffic authorities.

Q So, in this case, you actually requested for the traffic authorities to block off the route?
A As far as I remember we asked Sgt. Pascual to block off the route but considering that it
is the main artery to Fairview Village, it would not be possible to block off the route
since it will cause a lot of inconvenience for the other people in those areas and jeepney
drivers.

Q In other words, if you have your way you would have opted to block off the route.
A Yes, Your Honor.

Q But the fact is that the people did not agree.

A Yes, Your Honor, and it is stated in the permit given to us.55

Based on the foregoing testimony of Castro, Jr., Intergames had full awareness of
the higher risks involved in staging the race alongside running vehicles, and had
the option to hold the race in a route where such risks could be minimized, if not
eliminated. But it did not heed the danger already foreseen, if not expected, and
went ahead with staging the race along the plotted route on Don Mariano Marcos
Highway on the basis of its supposedly familiarity with the route. Such familiarity of
the organizer with the route and the fact that previous races had been conducted
therein without any untoward incident56 were not in themselves sufficient
safeguards. The standards for avoidance of injury through negligence further
required Intergames to establish that it did take adequate measures to avert the
foreseen danger, but it failed to do so.

Another failing on the part of Intergames was the patent inadequacy of the
personnel to man the route. As borne by the records, Intergames had no personnel
of its own for that purpose, and relied exclusively on the assistance of volunteers,
that is, "seven (7) traffic operatives, five (5) motorcycle policemen, fifteen (15)
patrolmen deployed along the route, fifteen (15) boy scouts, twelve (12) CATs,
twenty (20) barangay tanods, three (3) ambulances and three (3) medical
teams"57 to ensure the safety of the young runners who would be running alongside
moving vehicular traffic, to make the event safe and well coordinated.

Although the party relying on negligence as his cause of action had the burden of
proving the existence of the same, Intergames' coordination and supervision of the
personnel sourced from the cooperating agencies did not satisfy the diligence
required by the relevant circumstances. In this regard, it can be pointed out that
the number of deployed personnel, albeit sufficient to stage the marathon, did
not per se ensure the safe conduct of the race without proof that such deployed
volunteers had been properly coordinated and instructed on their tasks.

That the proper coordination and instruction were crucial elements for the safe
conduct of the race was well known to Intergames. Castro, Jr. stated as much, to
wit:

ATTY. LOMBOS:
xxxx

Q You also said that if you block off one side of the road, it is possible that it would be
more convenient to hold the race in that matter. Will you tell the Honorable Court if it is
possible also to hold a race safely if the road is not blocked off?

A Yes, sir.

Q How is it done.

A You can still run a race safely even if it is partially blocked off as long as you have
the necessary cooperation with the police authorities, and the police assigned along
the route of the race and the police assigned would be there, this will contribute the
safety of the participants, and also the vehicular division, as long as there are
substantial publicities in the newspapers, normally they will take the precautions in the
use of the particular route of the race.

Q Let me clarify this. Did you say that it is possible to hold a marathon safely if you have
this traffic assistance or coordination even if the route is blocked or not blocked?
A It is preferable to have the route blocked but in some cases, it would be impossible for the
portions of the road to be blocked totally. The route of the race could still be safe for
runners if a proper coordination or the agencies are notified especially police
detailees to man the particular stage.58

Sadly, Intergames' own evidence did not establish the conduct of proper
coordination and instruction. Castro, Jr. described the action plan adopted by
Intergames in the preparation for the race, as follows:
COURT

a Did you have any rehearsal let us say the race was conducted on June 15, now before
June 15 you call a meeting of all these runners so you can have more or less a map-up
and you would indicate or who will be stationed in their places etc. Did you have such a
rehearsal?

WITNESS

a It is not being done, your honor, but you have to specify them. You meet with the group
and you tell them that you wanted them to be placed in their particular areas which we
pointed out to them for example in the case of the Barangay Tanod, I specifically
assigned them in the areas and we sat down and we met.

COURT
q Did you have any action, plan or brochure which would indicate the assignment of each
of the participating group?

WITNESS
a Normally, sir, many of the races don't have that except when they called them to meeting
either as a whole group or the entire cooperating agency or meet them per group.

COURT
q Did you have a check list of the activities that would have to be entered before the actual
marathon some kind of system where you will indicate this particular activity has to be
checked etc. You did not have that?

WITNESS
q Are you asking, your honor, as a race director of I will check this because if I do that, I
won't have a race because that is not being done by any race director anywhere in the
world?

COURT
I am interested in your planning activities.
q In other words, what planning activities did you perform before the actual marathon?
a The planning activities we had, your honor, was to coordinate with the different agencies
involved informing them where they would be more or less placed.

COURT
q Let us go to...Who was supposed to be coordinating with you as to the citizens action
group who was your...you were referring to a person who was supposed to be manning
 these people and who was the person whom you coordinate with the Traffic Action
Group?

WITNESS
a I can only remember his name...his family name is Esguerra.
q How about with the Tanods?
a With the Tanods his name is Pedring Serrano.
q And with the Boys Scouts? (sic)
a And with the Boys Scouts of the Phils. (sic) it is Mr. Greg Panelo.

COURT
q When did you last meet rather how many times did you meet with Esguerra before the
marathon on June 15?

WITNESS
a The Citizens Traffic Action Group, your honor, had been with me in previous races.

COURT
q I am asking you a specific question. I am not interested in the Citizen Traffic Action
Group. The marathon was on June 15, did you meet with him on June 14, June 13 or June
12?
a We met once, your honor, I cannot remember the date.
q You don't recall how many days before?
a I cannot recall at the moment.
q How about with Mr. Serrano, how many times did you meet with him before the race?
a If my mind does not fail me, your honor, I met him twice because he lives just within our
area and we always see each other.
q How about with Panelo, how many times did you meet him?
a With Mr. Panelo, I did not meet with them, your honor.
q Was there an occasion where before the race you met with these three people together
since you did not meet with Panelo anytime? Was there anytime where you met with
Serrano and Esguerra together?

WITNESS
a No, your honor.
COURT
q When you met once with Esguerra, where did you meet? What place?
a I cannot recall at the moment, your honor, since it was already been almost six years ago.
q How about Serrano, where did you meet him?
a We met in my place.
q From your house? He went in your house?
a Yes, your honor.
q So you did not have let us say a...you don't have records of your meetings with these
people?

WITNESS
a With the Citizens Traffic Action, your honor?

COURT
a Yes.

WITNESS
a I don't have, your honor.

COURT
a Because you are familiar, I was just thinking this is an activity which requires planning
etc., what I was thinking when you said this was never done in any part of the world but
all activities it has to be planned. There must be some planning, now are you saying that
in this particular case you had no written plan or check list of activities what activities
have to be implemented on a certain point and time, who are the persons whom you must
meet in a certain point and time.

WITNESS
a Normally, we did not have that, your honor, except the check list of all the things that
should be ready at a particular time prior to the race and the people to be involved and we
have a check list to see to it that everything would be in order before the start of the race.

COURT
Proceed.

ATTY. VINLUAN
q Following the question of the Court Mr. Castro, did you meet with Lt. Depano of the
Police Department who were supposed to supervise the police officers assigned to help
during the race?
a I did not meet with him, sir.
q You did not meet with him?
a I did not meet with him.
q In fact, ever before or during the race you had no occasion to talk to Lt. Depano. Is that
correct?
a That is correct, sir.

ATTY. VINLUAN
Based on the question of the Court and your answer to the question of the Court, are you
trying to say that this planning before any race of all these groups who have committed to
help in the race, this is not done in any part of the world?

WITNESS
a In the latter years when your race became bigger and bigger, this is being done now
slowly.

ATTY. VINLUAN
q But for this particular race you will admit that you failed to do it when you have to
coordinate and even have a dry run of the race you failed to do all of that in this particular
race, yes or no?
a Because there was...

COURT
It was already answered by him when I asked him. The Court has...Everybody has a copy
how of this time planner. Any activity or even meeting a girlfriend or most people plan.

ATTY. F.M. LOMBOS

If your honor please, before we proceed...

WITNESS
In the latter years, your honor, when your race became bigger and bigger, this is being
done now slowly.
q For this particular race you will admit that you failed to do it?
a Because there was no need, sir.59
Probably sensing that he might have thereby contradicted himself, Castro, Jr.
clarified on re-direct examination:

ATTY. LOMBOS

Q Now, you also responded to a question during the same hearing and this appears on page
26 of the transcript that you did not hold any rehearsal or dry run for this particular
marathon. Could you tell the Court why you did not hold any such rehearsal or dry run?
A Because I believe there was no need for us to do that since we have been doing this for
many years and we have been the same people, same organization with us for so many
years conducting several races including some races in that area consisting of longer
distances and consisting of more runners, a lot more runners in that areay (sic) so these
people, they know exactly what to do and there was no need for us to have a rehearsal. I
believe this rehearsal would only be applicable if I am new and these people are new
then, we have to rehearse.

ATTY. LOMBOS
q You also stated Mr. Castro that you did not have any action plan or brochure which you
would indicate, an assignment of each of the participating group as to what to do during
the race. Will you please explain what you meant when you said you have no action plan
or brochure?

WITNESS
a What I mean of action plan, I did not have any written action plan but I was fully aware
of what to do. I mean, those people did not just go there out of nowhere. Obviously, there
was an action on my part because I have to communicate with them previously and to tell
them exactly what the race is all about; where to start; where it would end, and that is the
reason why we have the ambulances, we have the Boy Scouts, we have the CTA, we have
the police, so it was very obvious that there was a plan of action but not written because I
know pretty well exactly what to do. I was dealing with people who have been doing this
for a long period of time.60

While the level of trust Intergames had on its volunteers was admirable, the
coordination among the cooperating agencies was predicated on circumstances
unilaterally assumed by Intergames. It was obvious that Intergames' inaction had
been impelled by its belief that it did not need any action plan because it had been
dealing with people who had been manning similar races for a long period of time.

The evidence presented undoubtedly established that Intergames' notion of

coordination only involved informing the cooperating agencies of the date of the
race, the starting and ending points of the route, and the places along the route to
man. Intergames did not conduct any general assembly with all of them, being
content with holding a few sporadic meetings with the leaders of the coordinating
agencies. It held no briefings of any kind on the actual duties to be performed by
each group of volunteers prior to the race. It did not instruct the volunteers on how
to minimize, if not avert, the risks of danger in manning the race, despite such
being precisely why their assistance had been obtained in the first place.

Intergames had no right to assume that the volunteers had already been aware of
what exactly they would be doing during the race. It had the responsibility and duty
to give to them the proper instructions despite their experience from the past races
it had organized considering that the particular race related to runners of a different
level of experience, and involved different weather and environmental conditions,
and traffic situations. It should have remembered that the personnel manning the
race were not its own employees paid to perform their tasks, but volunteers whose
nature of work was remotely associated with the safe conduct of road races. Verily,
that the volunteers showed up and assumed their proper places or that they were
sufficient in number was not really enough. It is worthy to stress that proper
coordination in the context of the event did not consist in the mere presence of the
volunteers, but included making sure that they had been properly instructed on
their duties and tasks in order to ensure the safety of the young runners.

It is relevant to note that the participants of the 1st Pop Cola Junior Marathon were
mostly minors aged 14 to 18 years joining a race of that kind for the first time. The
combined factors of their youth, eagerness and inexperience ought to have put a
reasonably prudent organizer on higher guard as to their safety and security needs
during the race, especially considering Intergames' awareness of the risks already
foreseen and of other risks already known to it as of similar events in the past
organizer. There was no question at all that a higher degree of diligence was
required given that practically all of the participants were children or minors like
Rommel; and that the law imposes a duty of care towards children and minors even
if ordinarily there was no such duty under the same circumstances had the persons
involved been adults of sufficient discretion.61 In that respect, Intergames did not
observe the degree of care necessary as the organizer, rendering it liable for
negligence. As the Court has emphasized in Corliss v. The Manila Railroad
Company,62 where the danger is great, a high degree of care is necessary, and the
failure to observe it is a want of ordinary care under the circumstances.63

The circumstances of the persons, time and place required far more than what
Intergames undertook in staging the race. Due diligence would have made a
reasonably prudent organizer of the race participated in by young, inexperienced or
beginner runners to conduct the race in a route suitably blocked off from vehicular
traffic for the safety and security not only of the participants but the motoring
public as well. Since the marathon would be run alongside moving vehicular traffic,
at the very least, Intergames ought to have seen to the constant and closer
coordination among the personnel manning the route to prevent the foreseen risks
from befalling the participants. But this it sadly failed to do.

II
The negligence of Intergames as the organizer
was the proximate cause of the death of Rommel
As earlier mentioned, the CA found that Rommel, while running the marathon on
Don Mariano Marcos Avenue and after passing the Philippine Atomic Energy
Commission Building, was bumped by a passenger jeepney that was racing with a
minibus and two other vehicles as if trying to crowd each other out. As such, the
death of Rommel was caused by the negligence of the jeepney driver.

Intergames staunchly insists that it was not liable, maintaining that even
assuming arguendo that it was negligent, the negligence of the jeepney driver was
the proximate cause of the death of Rommel; hence, it should not be held liable.

Did the negligence of Intergames give rise to its liability for the death of Rommel
notwithstanding the negligence of the jeepney driver?

In order for liability from negligence to arise, there must be not only proof of
damage and negligence, but also proof that the damage was the consequence of
the negligence. The Court has said in Vda. de Gregorio v. Go Chong Bing:64

x x x Negligence as a source of obligation both under the civil law and in American
cases was carefully considered and it was held:

We agree with counsel for appellant that under the Civil Code, as under the
generally accepted doctrine in the United States, the plaintiff in an action such as
that under consideration, in order to establish his right to a recovery, must
establish by competent evidence:

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally or some person for
whose acts it must respond, was guilty.

(3) The connection of cause and effect between the negligence and the
damage." (Taylor vs. Manila Electric Railroad and Light Co., supra, p. 15.)

In accordance with the decision of the Supreme Court of Spain, in order that a
person may be held guilty for damage through negligence, it is necessary that there
be an act or omission on the part of the person who is to be charged with the
liability and that damage is produced by the said act or omission.65 (Emphasis
supplied)

We hold that the negligence of Intergames was the proximate cause despite the
intervening negligence of the jeepney driver.

Proximate cause is "that which, in natural and continuous sequence, unbroken by

any new cause, produces an event, and without which the event would not have
occurred."66 In Vda. de Bataclan, et al. v. Medina,67 the Court, borrowing from
American Jurisprudence, has more extensively defined proximate cause thusly:
"* * * 'that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury and without which the result would
not have occurred.' And more comprehensively, 'the proximate legal cause is that
acting first and producing the injury, either immediately or by setting other events
in motion, all constituting a natural and continuous chain of events, each having a
close causal connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable result of the cause which
first acted, under such circumstances that the person responsible for the first event
should, as an ordinarily prudent and intelligent person, have reasonable ground to
expect at the moment of his act or default that an injury to some person might
probably result therefrom."68

To be considered the proximate cause of the injury, the negligence need not be the
event closest in time to the injury; a cause is still proximate, although farther in
time in relation to the injury, if the happening of it set other foreseeable events into
motion resulting ultimately in the damage.69 According to an authority on civil
law:70"A prior and remote cause cannot be made the basis of an action, if such
remote cause did nothing more than furnish the condition or give rise to the
occasion by which the injury was made possible, if there intervened between such
prior or remote cause and the injury a distinct, successive, unrelated and efficient
cause, even though such injury would not have happened but for such condition or
occasion. If no damage exists in the condition except because of the independent
cause, such condition was not the proximate cause. And if an independent negligent
act or defective condition sets into operation the circumstances which result in
injury because of the prior defective condition, such act or condition is the
proximate cause."

Bouvier adds:

In many cases important questions arise as to which, in the chain of acts tending to
the production of a given state of things, is to be considered the responsible cause.
It is not merely distance of place or of causation that renders a cause remote. The
cause nearest in the order of causation, without any efficient concurring cause to
produce the result, may be considered the direct cause. In the course of
decisions of cases in which it is necessary to determine which of several
causes is so far responsible for the happening of the act or injury
complained of, what is known as the doctrine of proximate cause is
constantly resorted to in order to ascertain whether the act, omission, or
negligence of the person whom it is sought to hold liable was in law and in
fact responsible for the result which is the foundation of the action.71

xxxx

The question of proximate cause is said to be determined, not by the

existence or non-existence of intervening events, but by their character
and the natural connection between the original act or omission and the
injurious consequences. When the intervening cause is set in operation by
the original negligence, such negligence is still the proximate cause; x x x
If the party guilty of the first act of negligence might have anticipated the
intervening cause, the connection is not broken; x x x. Any number of
causes and effects may intervene, and if they are such as might with
reasonable diligence have been foreseen, the last result is to be considered
as the proximate result. But whenever a new cause intervenes, which is
not a consequence of the first wrongful cause, which is not under control
of the wrongdoer, which could not have been foreseen by the exercise of
reasonable diligence, and except for which the final injurious consequence
could not have happened, then such injurious consequence must be
deemed too remote; x x x.72 (bold underscoring supplied for emphasis)

An examination of the records in accordance with the foregoing concepts supports

the conclusions that the negligence of Intergames was the proximate cause of the
death of Rommel; and that the negligence of the jeepney driver was not an efficient
intervening cause.

First of all, Intergames' negligence in not conducting the race in a road blocked off
from vehicular traffic, and in not properly coordinating the volunteer personnel
manning the marathon route effectively set the stage for the injury complained of.
The submission that Intergames had previously conducted numerous safe races did
not persuasively demonstrate that it had exercised due diligence because, as the
trial court pointedly observed, "[t]hey were only lucky that no accident occurred
during the previous marathon races but still the danger was there."73

Secondly, injury to the participants arising from an unfortunate vehicular accident

on the route was an event known to and foreseeable by Intergames, which could
then have been avoided if only Intergames had acted with due diligence by
undertaking the race on a blocked-off road, and if only Intergames had enforced
and adopted more efficient supervision of the race through its volunteers.

And, thirdly, the negligence of the jeepney driver, albeit an intervening cause, was
not efficient enough to break the chain of connection between the negligence of
Intergames and the injurious consequence suffered by Rommel. An intervening
cause, to be considered efficient, must be "one not produced by a wrongful act or
omission, but independent of it, and adequate to bring the injurious results. Any
cause intervening between the first wrongful cause and the final injury which might
reasonably have been foreseen or anticipated by the original wrongdoer is not such
an efficient intervening cause as will relieve the original wrong of its character as
the proximate cause of the final injury."74

In fine, it was the duty of Intergames to guard Rommel against the foreseen risk,
but it failed to do so.

III
The doctrine of assumption of risk
had no application to Rommel
Unlike the RTC, the CA ruled that the doctrine of assumption of risk applied herein;
hence, it declared Intergames and Cosmos not liable. The CA rendered the following
rationalization to buttress its ruling, to wit:

In this case, appellant Romulo Abrogar himself admitted that his son, Rommel
Abrogar, surveyed the route of the marathon and even attended a briefing before
the race. Consequently, he was aware that the marathon would pass through a
national road and that the said road would not be blocked off from traffic. And
considering that he was already eighteen years of age, had voluntarily participated
in the marathon, with his parents' consent, and was well aware of the traffic
hazards along the route, he thereby assumed all the risks of the race. This is
precisely why permission from the participant's parents, submission of a medical
certificate and a waiver of all rights and causes of action arising from the
participation in the marathon which the participant or his heirs may have against
appellant Intergames were required as conditions in joining the marathon.

In the decision of the trial court, it stated that the risk mentioned in the waiver
signed by Rommel Abrogar only involved risks such as stumbling, suffering
heatstroke, heart attack and other similar risks. It did not consider vehicular
accident as one of the risks included in the said waiver.

This Court does not agree. With respect to voluntary participation in a sport, the
doctrine of assumption of risk applies to any facet of the activity inherent in it and
to any open and obvious condition of the place where it is carried on. We believe
that the waiver included vehicular accidents for the simple reason that it was a road
race run on public roads used by vehicles. Thus, it cannot be denied that vehicular
accidents are involved. It was not a track race which is held on an oval and
insulated from vehicular traffic. In a road race, there is always the risk of runners
being hit by motor vehicles while they train or compete. That risk is inherent in the
sport and known to runners. It is a risk they assume every time they voluntarily
engage in their sport.

Furthermore, where a person voluntarily participates in a lawful game or contest,

he assumes the ordinary risks of such game or contest so as to preclude recovery
from the promoter or operator of the game or contest for injury or death resulting
therefrom. Proprietors of amusements or of places where sports and games are
played are not insurers of safety of the public nor of their patrons.

In Mc Leod Store v. Vinson 213 Ky 667, 281 SW 799 (1926), it was held that a boy,
seventeen years of age, of ordinary intelligence and physique, who entered a race
conducted by a department store, the purpose of which was to secure guinea fowl
which could be turned in for cash prizes, had assumed the ordinary risks incident
thereto and was barred from recovering against the department store for injuries
suffered when, within catching distance, he stopped to catch a guinea, and was
tripped or stumbled and fell to the pavement, six or eight others falling upon him.
The court further said: "In this (the race) he was a voluntary participant. x x x The
anticipated danger was as obvious to him as it was to appellant (the department
store). While not an adult, he was practically 17 years of age, of ordinary
intelligence, and perfectly able to determine the risks ordinarily incident to such
games. An ordinary boy of that age is practically as well advised as to the hazards
of baseball, basketball, football, foot races and other games of skill and endurance
as is an adult x x x ."

In the case at bar, the "1st Pop Cola Junior Marathon" held on June 15, 1 980 was a
race the winner of which was to represent the country in the annual Spirit of
Pheidippides Marathon Classic in Greece, if he equals or breaks the 29-minute mark
for the 19-km. race. Thus, Rommel Abrogar having voluntarily participated in the
race, with his parents' consent, assumed all the risks of the race.75

The doctrine of assumption of risk means that one who voluntarily exposes himself
to an obvious, known and appreciated danger assumes the risk of injury that may
result therefrom.76 It rests on the fact that the person injured has consented to
relieve the defendant of an obligation of conduct toward him and to take his chance
of injury from a known risk, and whether the former has exercised proper caution
or not is immaterial.77 In other words, it is based on voluntary consent, express or
implied, to accept danger of a known and appreciated risk; it may sometimes
include acceptance of risk arising from the defendant's negligence, but one does not
ordinarily assume risk of any negligence which he does not know and
appreciate.78 As a defense in negligence cases, therefore, the doctrine requires the
concurrence of three elements, namely: (1) the plaintiff must know that the risk is
present; (2) he must further understand its nature; and (3) his choice to incur it
must be free and voluntary.79 According to Prosser:80 "Knowledge of the risk is the
watchword of assumption of risk."

Contrary to the notion of the CA, the concurrence of the three elements was not
shown to exist. Rommel could not have assumed the risk of death when he
participated in the race because death was neither a known nor normal risk incident
to running a race. Although he had surveyed the route prior to the race and should
be presumed to know that he would be running the race alongside moving vehicular
traffic, such knowledge of the general danger was not enough, for some authorities
have required that the knowledge must be of the specific risk that caused the harm
to him.81 In theory, the standard to be applied is a subjective one, and should be
geared to the particular plaintiff and his situation, rather than that of the
reasonable person of ordinary prudence who appears in contributory
negligence.82 He could not have appreciated the risk of being fatally struck by any
moving vehicle while running the race. Instead, he had every reason to believe that
the organizer had taken adequate measures to guard all participants against any
danger from the fact that he was participating in an organized marathon. Stated
differently, nobody in his right mind, including minors like him, would have joined
the marathon if he had known of or appreciated the risk of harm or even death
from vehicular accident while running in the organized running event. Without
question, a marathon route safe and free from foreseeable risks was the reasonable
expectation of every runner participating in an organized running event.

Neither was the waiver by Rommel, then a minor, an effective form of express or
implied consent in the context of the doctrine of assumption of risk. There is ample
authority, cited in Prosser,83 to the effect that a person does not comprehend the
risk involved in a known situation because of his youth,84 or lack of information or
experience,85 and thus will not be taken to consent to assume the risk.

Clearly, the doctrine of assumption of risk does not apply to bar recovery by the
petitioners.

IV
Cosmos is not liable for the negligence
of Intergames as the organizer

Nonetheless, the CA did not err in absolving Cosmos from liability.

The sponsorship of the marathon by Cosmos was limited to financing the race.
Cosmos did nothing beyond that, and did not involve itself at all in the preparations
for the actual conduct of the race. This verity was expressly confirmed by
Intergames, through Castro, Jr., who declared as follows:

COURT
q Do you discuss all your preparation with Cosmos Bottling Company?
a As far as the Cosmos Bottling Company (sic) was a sponsor as to the actual conduct
of the race, it is my responsibility. The conduct of the race is my responsibility. The
sponsor has nothing to do as well as its code of the race because they are not the ones
running. I was the one running. The responsibility of Cosmos was just to provide the
sponsor's money.

COURT
q They have no right to who (sic) suggest the location, the number of runners, you
decide these yourself without consulting them?
a Yes, your honor.86

We uphold the finding by the CA that the role of Cosmos was to pursue its
corporate commitment to sports development of the youth as well as to serve the
need for advertising its business. In the absence of evidence showing that Cosmos
had a hand in the organization of the race, and took part in the determination of
the route for the race and the adoption of the action plan, including the safety and
security measures for the benefit of the runners, we cannot but conclude that the
requirement for the direct or immediate causal connection between the financial
sponsorship of Cosmos and the death of Rommel simply did not exist. Indeed,
Cosmos' mere sponsorship of the race was, legally speaking, too remote to be the
efficient and proximate cause of the injurious consequences.

V
Damages
Article 2202 of the Civil Code lists the damages that the plaintiffs in a suit upon
crimes and quasi-delicts can recover from the defendant, viz.:

Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages
which are the natural and probable consequences of the act or omission complained
of. It is not necessary that such damages have been foreseen or could have
reasonably been foreseen by the defendant.

Accordingly, Intergames was liable for all damages that were the natural and
probable consequences of its negligence. In its judgment, the RTC explained the
award of damages in favor of the petitioners, as follows:

As borne by the evidence on record, the plaintiffs incurred medical, hospitalization

and burial expenses for their son in this aggregate amount of P28,061.65 (Exhibits
"D", ''D-1" and "D-2"). In instituting this case, they have paid their lawyer P5,000
as initial deposit, their arrangement being that they would pay attorney's fees to
the extent of 10% of whatever amount would be awarded to them in this case.

For the loss of a son, it is unquestionable that plaintiffs suffered untold grief which
should entitle them to recover moral damages, and this Court believes that if only
to assuage somehow their untold grief but not necessarily to compensate them to
the fullest, the nominal amount of P100,00.00 should be paid by the defendants.

For failure to adopt elementary and basic precautionary measure to insure the
safety of the participants so that sponsors and organizers of sports events should
exercise utmost diligence in preventing injury to the participants and the public as
well, exemplary damages should also be paid by the defendants and this Court
considers the amount of P50,000.00 as reasonable.87

Although we will not disturb the foregoing findings and determinations, we need to
add to the justification for the grant of exemplary damages. Article 2231 of the Civil
Code stipulates that exemplary damages are to be awarded in cases of quasi-delict
if the defendant acted with gross negligence. The foregoing characterization by the
RTC indicated that Intergames' negligence was gross. We agree with the
characterization. Gross negligence, according to Mendoza v. Spouses Gomez,88 is
the absence of care or diligence as to amount to a reckless disregard of the safety
of persons or property; it evinces a thoughtless disregard of consequences without
exerting any effort to avoid them. Indeed, the failure of Intergames to adopt the
basic precautionary measures for the safety of the minor participants like Rommel
was in reckless disregard of their safety. Conduct is reckless when it is an extreme
departure from ordinary care, in a situation in which a high degree of danger is
apparent; it must be more than any mere mistake resulting from inexperience,
excitement, or confusion, and more than mere thoughtlessness or inadvertence, or
simple inattention.89

The RTC did not recognize the right of the petitioners to recover the loss of earning
capacity of Rommel. It should have, for doing so would have conformed to
jurisprudence whereby the Court has unhesitatingly allowed such recovery in
respect of children, students and other non-working or still unemployed victims.
The legal basis for doing so is Article 2206 (1) of the Civil Code, which stipulates
that the defendant "shall be liable for the loss of the earning capacity of the
deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity
shall in every case be assessed and awarded by the court, unless the deceased on
account of permanent physical disability not caused by the defendant, had no
earning capacity at the time of his death."

Indeed, damages for loss of earning capacity may be awarded to the heirs of a
deceased non-working victim simply because earning capacity, not necessarily
actual earning, may be lost.

In Metro Manila Transit Corporation v. Court of Appeals,90 damages for loss of

earning capacity were granted to the heirs of a third-year high school student of the
University of the Philippines Integrated School who had been killed when she was
hit and run over by the petitioner's passenger bus as she crossed Katipunan Avenue
in Quezon City. The Court justified the grant in this wise:

Compensation of this nature is awarded not for loss of earnings but for loss
of capacity to earn money. Evidence must be presented that the victim, if
not yet employed at the time of death, was reasonably certain to complete
training for a specific profession. In People v. Teehankee, no award of
compensation for loss of earning capacity was granted to the heirs of a college
freshman because there was no sufficient evidence on record to show that the
victim would eventually become a professional pilot. But compensation should
be allowed for loss of earning capacity resulting from the death of a minor
who has not yet commenced employment or training for a specific
profession if sufficient evidence is presented to establish the amount
thereof.91 (bold underscoring supplied for emphasis)

In People v. Sanchez,92 damages for loss of earning capacity was also allowed to
the heirs of the victims of rape with homicide despite the lack of sufficient evidence
to establish what they would have earned had they not been killed. The Court
rationalized its judgment with the following observations:

Both Sarmenta and Gomez were senior agriculture students at UPLB, the country's
leading educational institution in agriculture. As reasonably assumed by the trial
court, both victims would have graduated in due course. Undeniably, their
untimely death deprived them of their future time and earning capacity.
For these deprivation, their heirs are entitled to
compensation. xxxx. However, considering that Sarmenta and Gomez
would have graduated in due time from a reputable university, it would not
be unreasonable to assume that in 1993 they would have earned more
than the minimum wage. All factors considered, the Court believes that it
is fair and reasonable to fix the monthly income that the two would have
earned in 1993 at P8,000.000 per month (or P96,000.00/year) and their
deductible living and other incidental expenses at P3,000.00 per month (or
P36,000.00/year).93 (bold underscoring supplied for emphasis)
In Pereña v. Zarate,94 the Court fixed damages for loss of earning capacity to be
paid to the heirs of the 15-year-old high school student of Don Bosco Technical
Institute killed when a moving train hit the school van ferrying him to school while
it was traversing the railroad tracks. The RTC and the CA had awarded damages for
loss of earning capacity computed on the basis of the minimum wage in effect at
the time of his death. Upholding said findings, the Court opined:

x x x, the fact that Aaron was then without a history of earnings should not be
taken against his parents and in favor of the defendants whose negligence not only
cost Aaron his life and his right to work and earn money, but also deprived his
parents of their right to his presence and his services as well. x x x. Accordingly,
we emphatically hold in favor of the indemnification for Aaron's loss of
earning capacity despite him having been unemployed, because
compensation of this nature is awarded not for loss of time or earnings but
for loss of the deceased's power or ability to earn money.

The petitioners sufficiently showed that Rommel was, at the time of his untimely
but much lamented death, able-bodied, in good physical and mental state, and a
student in good standing.95 It should be reasonable to assume that Rommel would
have finished his schooling and would turn out to be a useful and productive person
had he not died. Under the foregoing jurisprudence, the petitioners should be
compensated for losing Rommel's power or ability to earn. The basis for the
computation of earning capacity is not what he would have become or what he
would have wanted to be if not for his untimely death, but the minimum wage in
effect at the time of his death. The formula for this purpose is:

Net Earning Capacity = Life Expectancy x [Gross Annual Income less Necessary
Living Expenses]96

Life expectancy is equivalent to 2/3 multiplied by the difference of 80 and the age
of the deceased. Since Rommel was 18 years of age at the time of his death, his life
expectancy was 41 years. His projected gross annual income, computed based on
the minimum wage for workers in the non-agricultural sector in effect at the time of
his death,97 then fixed at P14.00/day, is P5,535.83. Allowing for necessary living
expenses of 50% of his projected gross annual income, his total net earning
capacity is P113,484.52.

Article 2211 of the Civil Code expressly provides that interest, as a part of
damages, may be awarded in crimes and quasi-delicts at the discretion of the court.
The rate of interest provided under Article 2209 of the Civil Code is 6% per
annum in the absence of stipulation to the contrary. The legal interest rate of
6% per annum is to be imposed upon the total amounts herein awarded from the
time of the judgment of the RTC on May 10, 1991 until finality of
judgment.98 Moreover, pursuant to Article 221299 of the Civil Code, the legal
interest rate of 6% per annum is to be further imposed on the interest earned up to
the time this judgment of the Court becomes final and executory until its full
satisfaction.100
Article 2208 of the Civil Code expressly allows the recovery of attorney's fees and
expenses of litigation when exemplary damages have been awarded. Thus, we
uphold the RTC's allocation of attorney's fees in favor of the petitioners equivalent
to 10% of the total amount to be recovered, inclusive of the damages for loss of
earning capacity and interests, which we consider to be reasonable under the
circumstances.

WHEREFORE, the Court PARTLY AFFIRMS the decision promulgated on March

10, 2004 to the extent that it absolved COSMOS BOTTLING COMPANY,
INC. from liability; REVERSES and SETS ASIDE the decision as to INTERGAMES,
INC., and REINSTATES as to it the judgment rendered on May 10, 1991 by the
Regional Trial Court, Branch 83, in Quezon City subject to
the MODIFICATIONS that INTERGAMES, INC. is ORDERED TO PAY to the
petitioners, in addition to the awards thereby allowed: (a) the sum of P113,484.52
as damages for the loss of Rommel Abrogar's earning capacity; (b) interest of
6% per annum on the actual damages, moral damages, exemplary damages and
loss of earning capacity reckoned from May 10, 1991 until full payment; (c)
compounded interest of 6% per annum from the finality of this decision until full
payment; and (d) costs of suit.

SO ORDERED.

G.R. No. 154259 February 28, 2005

NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners,

vs.
ROBERTO REYES, a.k.a. "AMAY BISAYA," respondent.

DECISION

CHICO-NAZARIO, J.:

In this petition for review on certiorari, petitioners Nikko Hotel Manila Garden (Hotel Nikko)1 and Ruby
Lim assail the Decision2 of the Court of Appeals dated 26 November 2001 reversing the Decision3 of
the Regional Trial Court (RTC) of Quezon City, Branch 104, as well as the Resolution4 of the Court of
Appeals dated 09 July 2002 which denied petitioners’ motion for reconsideration.

The cause of action before the trial court was one for damages brought under the human relations
provisions of the New Civil Code. Plaintiff thereat (respondent herein) Roberto Reyes, more
popularly known by the screen name "Amay Bisaya," alleged that at around 6:00 o’clock in the
evening of 13 October 1994, while he was having coffee at the lobby of Hotel Nikko,5 he was spotted
by his friend of several years, Dr. Violeta Filart, who then approached him.6 Mrs. Filart invited him to
join her in a party at the hotel’s penthouse in celebration of the natal day of the hotel’s manager, Mr.
Masakazu Tsuruoka.7 Mr. Reyes asked if she could vouch for him for which she replied: "of
course."8 Mr. Reyes then went up with the party of Dr. Filart carrying the basket of fruits which was
the latter’s present for the celebrant.9 At the penthouse, they first had their picture taken with the
celebrant after which Mr. Reyes sat with the party of Dr. Filart.10 After a couple of hours, when the
buffet dinner was ready, Mr. Reyes lined-up at the buffet table but, to his great shock, shame and
embarrassment, he was stopped by petitioner herein, Ruby Lim, who claimed to speak for Hotel
Nikko as Executive Secretary thereof.11 In a loud voice and within the presence and hearing of the
other guests who were making a queue at the buffet table, Ruby Lim told him to leave the party
("huwag ka nang kumain, hindi ka imbitado, bumaba ka na lang").12 Mr. Reyes tried to explain that he
was invited by Dr. Filart.13 Dr. Filart, who was within hearing distance, however, completely ignored
him thus adding to his shame and humiliation.14 Not long after, while he was still recovering from the
traumatic experience, a Makati policeman approached and asked him to step out of the hotel.15 Like a
common criminal, he was escorted out of the party by the policeman.16 Claiming damages, Mr. Reyes
asked for One Million Pesos actual damages, One Million Pesos moral and/or exemplary damages
and Two Hundred Thousand Pesos attorney’s fees.17

Ruby Lim, for her part, admitted having asked Mr. Reyes to leave the party but not under the
ignominious circumstance painted by the latter. Ms. Lim narrated that she was the Hotel’s Executive
Secretary for the past twenty (20) years.18 One of her functions included organizing the birthday party
of the hotel’s former General Manager, Mr. Tsuruoka.19 The year 1994 was no different. For Mr.
Tsuruoka’s party, Ms. Lim generated an exclusive guest list and extended invitations
accordingly.20 The guest list was limited to approximately sixty (60) of Mr. Tsuruoka’s closest friends
and some hotel employees and that Mr. Reyes was not one of those invited.21 At the party, Ms. Lim
first noticed Mr. Reyes at the bar counter ordering a drink.22 Mindful of Mr. Tsuruoka’s wishes to keep
the party intimate, Ms. Lim approached Mr. Boy Miller, the "captain waiter," to inquire as to the
presence of Mr. Reyes who was not invited.23 Mr. Miller replied that he saw Mr. Reyes with the group
of Dr. Filart.24 As Dr. Filart was engaged in conversation with another guest and as Ms. Lim did not
want to interrupt, she inquired instead from the sister of Dr. Filart, Ms. Zenaida Fruto, who told her
that Dr. Filart did not invite Mr. Reyes.25 Ms. Lim then requested Ms. Fruto to tell Mr. Reyes to leave
the party as he was not invited.26 Mr. Reyes, however, lingered prompting Ms. Lim to inquire from Ms.
Fruto who said that Mr. Reyes did not want to leave.27 When Ms. Lim turned around, she saw Mr.
Reyes conversing with a Captain Batung whom she later approached.28 Believing that Captain
Batung and Mr. Reyes knew each other, Ms. Lim requested from him the same favor from Ms.
Fruto, i.e., for Captain Batung to tell Mr. Reyes to leave the party as he was not invited.29 Still, Mr.
Reyes lingered. When Ms. Lim spotted Mr. Reyes by the buffet table, she decided to speak to him
herself as there were no other guests in the immediate vicinity.30 However, as Mr. Reyes was already
helping himself to the food, she decided to wait.31 When Mr. Reyes went to a corner and started to
eat, Ms. Lim approached him and said: "alam ninyo, hindo ho kayo dapat nandito. Pero total
nakakuha na ho kayo ng pagkain, ubusin na lang ninyo at pagkatapos kung pwede lang po umalis
na kayo."32 She then turned around trusting that Mr. Reyes would show enough decency to leave, but
to her surprise, he began screaming and making a big scene, and even threatened to dump food on
her.33
1awphi 1.nét

Dr. Violeta Filart, the third defendant in the complaint before the lower court, also gave her version of
the story to the effect that she never invited Mr. Reyes to the party.34 According to her, it was Mr.
Reyes who volunteered to carry the basket of fruits intended for the celebrant as he was likewise
going to take the elevator, not to the penthouse but to Altitude 49.35 When they reached the
penthouse, she reminded Mr. Reyes to go down as he was not properly dressed and was not
invited.36 All the while, she thought that Mr. Reyes already left the place, but she later saw him at the
bar talking to Col. Batung.37 Then there was a commotion and she saw Mr. Reyes shouting.38 She
ignored Mr. Reyes.39 She was embarrassed and did not want the celebrant to think that she invited
him.40

After trial on the merits, the court a quo dismissed the complaint,41 giving more credence to the
testimony of Ms. Lim that she was discreet in asking Mr. Reyes to leave the party. The trial court
likewise ratiocinated that Mr. Reyes assumed the risk of being thrown out of the party as he was
uninvited:

Plaintiff had no business being at the party because he was not a guest of Mr. Tsuruoka, the
birthday celebrant. He assumed the risk of being asked to leave for attending a party to which he
was not invited by the host. Damages are pecuniary consequences which the law imposes for the
breach of some duty or the violation of some right. Thus, no recovery can be had against defendants
Nikko Hotel and Ruby Lim because he himself was at fault (Garciano v. Court of Appeals, 212 SCRA
436). He knew that it was not the party of defendant Violeta Filart even if she allowed him to join her
and took responsibility for his attendance at the party. His action against defendants Nikko Hotel and
Ruby Lim must therefore fail.42

On appeal, the Court of Appeals reversed the ruling of the trial court as it found more commanding
of belief the testimony of Mr. Reyes that Ms. Lim ordered him to leave in a loud voice within hearing
distance of several guests:

In putting appellant in a very embarrassing situation, telling him that he should not finish his food and
to leave the place within the hearing distance of other guests is an act which is contrary to morals,
good customs . . ., for which appellees should compensate the appellant for the damage suffered by
the latter as a consequence therefore (Art. 21, New Civil Code). The liability arises from the acts
which are in themselves legal or not prohibited, but contrary to morals or good customs. Conversely,
even in the exercise of a formal right, [one] cannot with impunity intentionally cause damage to
another in a manner contrary to morals or good customs.43

The Court of Appeals likewise ruled that the actuation of Ms. Lim in approaching several people to
inquire into the presence of Mr. Reyes exposed the latter to ridicule and was uncalled for as she
should have approached Dr. Filart first and both of them should have talked to Mr. Reyes in private:

Said acts of appellee Lim are uncalled for. What should have been done by appellee Lim was to
approach appellee Mrs. Filart and together they should have told appellant Reyes in private that the
latter should leave the party as the celebrant only wanted close friends around. It is necessary that
Mrs. Filart be the one to approach appellant because it was she who invited appellant in that
occasion. Were it not for Mrs. Filart’s invitation, appellant could not have suffered such humiliation.
For that, appellee Filart is equally liable.

...

The acts of [appellee] Lim are causes of action which are predicated upon mere rudeness or lack of
consideration of one person, which calls not only protection of human dignity but respect of such
dignity. Under Article 20 of the Civil Code, every person who violates this duty becomes liable for
damages, especially if said acts were attended by malice or bad faith. Bad faith does not simply
connote bad judgment or simple negligence. It imports a dishonest purpose or some moral obliquity
and conscious doing of a wrong, a breach of a known duty to some motive or interest or ill-will that
partakes of the nature of fraud (Cojuangco, Jr. v. CA, et al., 309 SCRA 603).44

Consequently, the Court of Appeals imposed upon Hotel Nikko, Ruby Lim and Dr. Violeta Filart the
solidary obligation to pay Mr. Reyes (1) exemplary damages in the amount of Two Hundred
Thousand Pesos (P200,000); (2) moral damages in the amount of Two Hundred Thousand Pesos
(P200,000); and (3) attorney’s fees in the amount of Ten Thousand Pesos (P10,000).45 On motion for
reconsideration, the Court of Appeals affirmed its earlier decision as the argument raised in the
motion had "been amply discussed and passed upon in the decision sought to be reconsidered."46

Thus, the instant petition for review. Hotel Nikko and Ruby Lim contend that the Court of Appeals
seriously erred in –

I.
… NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT INJURIA CONSIDERING THAT BY
ITS OWN FINDINGS, AMAY BISAYA WAS A GATE-CRASHER

II.

… HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND SEVERALLY LIABLE WITH DR.
FILART FOR DAMAGES SINCE BY ITS OWN RULING, AMAY BISAYA "COULD NOT HAVE
SUFFERED SUCH HUMILIATION," "WERE IT NOT FOR DR. FILART’S INVITATION"

III.

… DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL COURT AS REGARDS THE
CIRCUMSTANCES THAT ALLEGEDLY CAUSED THE HUMILIATION OF AMAY BISAYA

IV.

… IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY BECAUSE OF HIS

POVERTY, CONSIDERING THAT THIS WAS NEVER AN ISSUE AND NO EVIDENCE WAS
PRESENTED IN THIS REGARD

V.

… IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF THE APPELLANT’S BRIEF,
THEREBY DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS

Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine of volenti non fit injuria, they
cannot be made liable for damages as respondent Reyes assumed the risk of being asked to leave
(and being embarrassed and humiliated in the process) as he was a "gate-crasher."

The doctrine of volenti non fit injuria ("to which a person assents is not esteemed in law as injury"47 )
refers to self-inflicted injury48 or to the consent to injury49 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.50 As formulated by petitioners, however, this doctrine does not find application to the case
at bar because even if respondent Reyes assumed the risk of being asked to leave the party,
petitioners, under Articles 19 and 21 of the New Civil Code, were still under obligation to treat him
fairly in order not to expose him to unnecessary ridicule and shame.

Thus, the threshold issue is whether or not Ruby Lim acted abusively in asking Roberto Reyes,
a.k.a. "Amay Bisaya," to leave the party where he was not invited by the celebrant thereof thereby
becoming liable under Articles 19 and 21 of the Civil Code. Parenthetically, and if Ruby Lim were so
liable, whether or not Hotel Nikko, as her employer, is solidarily liable with her.

As the trial court and the appellate court reached divergent and irreconcilable conclusions
concerning the same facts and evidence of the case, this Court is left without choice but to use its
latent power to review such findings of facts. Indeed, the general rule is that we are not a trier of
facts as our jurisdiction is limited to reviewing and revising errors of law.51 One of the exceptions to
this general rule, however, obtains herein as the findings of the Court of Appeals are contrary to
those of the trial court.52 The lower court ruled that Ms. Lim did not abuse her right to ask Mr. Reyes
to leave the party as she talked to him politely and discreetly. The appellate court, on the other hand,
held that Ms. Lim is liable for damages as she needlessly embarrassed Mr. Reyes by telling him not
to finish his food and to leave the place within hearing distance of the other guests. Both courts,
however, were in agreement that it was Dr. Filart’s invitation that brought Mr. Reyes to the party.

The consequential question then is: Which version is credible?

From an in depth review of the evidence, we find more credible the lower court’s findings of fact.

First, let us put things in the proper perspective.

We are dealing with a formal party in a posh, five-star hotel,53 for-invitation-only, thrown for the hotel’s
former Manager, a Japanese national. Then came a person who was clearly uninvited (by the
celebrant)54 and who could not just disappear into the crowd as his face is known by many, being an
actor. While he was already spotted by the organizer of the party, Ms. Lim, the very person who
generated the guest list, it did not yet appear that the celebrant was aware of his presence. Ms. Lim,
mindful of the celebrant’s instruction to keep the party intimate, would naturally want to get rid of the
"gate-crasher" in the most hush-hush manner in order not to call attention to a glitch in an otherwise
seamless affair and, in the process, risk the displeasure of the celebrant, her former boss. To
unnecessarily call attention to the presence of Mr. Reyes would certainly reflect badly on Ms. Lim’s
ability to follow the instructions of the celebrant to invite only his close friends and some of the
hotel’s personnel. Mr. Reyes, upon whom the burden rests to prove that indeed Ms. Lim loudly and
rudely ordered him to leave, could not offer any satisfactory explanation why Ms. Lim would do that
and risk ruining a formal and intimate affair. On the contrary, Mr. Reyes, on cross-examination, had
unwittingly sealed his fate by admitting that when Ms. Lim talked to him, she was very close. Close
enough for him to kiss:

Q: And, Mr. Reyes, you testified that Miss Lim approached you while you were at the buffet
table? How close was she when she approached you?

A: Very close because we nearly kissed each other.

Q: And yet, she shouted for you to go down? She was that close and she shouted?

A: Yes. She said, "wag kang kumain, hindi ka imbitado dito, bumaba ka na lang."

Q: So, you are testifying that she did this in a loud voice?

...

A: Yes. If it is not loud, it will not be heard by many.55

In the absence of any proof of motive on the part of Ms. Lim to humiliate Mr. Reyes and expose him
to ridicule and shame, it is highly unlikely that she would shout at him from a very close distance.
Ms. Lim having been in the hotel business for twenty years wherein being polite and discreet are
virtues to be emulated, the testimony of Mr. Reyes that she acted to the contrary does not inspire
belief and is indeed incredible. Thus, the lower court was correct in observing that –

Considering the closeness of defendant Lim to plaintiff when the request for the latter to leave the
party was made such that they nearly kissed each other, the request was meant to be heard by him
only and there could have been no intention on her part to cause embarrassment to him. It was
plaintiff’s reaction to the request that must have made the other guests aware of what transpired
between them. . .
Had plaintiff simply left the party as requested, there was no need for the police to take him out.56

Moreover, another problem with Mr. Reyes’s version of the story is that it is unsupported. It is a basic
rule in civil cases that he who alleges proves. Mr. Reyes, however, had not presented any witness to
back his story up. All his witnesses – Danny Rodinas, Pepito Guerrero and Alexander Silva - proved
only that it was Dr. Filart who invited him to the party.57

Ms. Lim, not having abused her right to ask Mr. Reyes to leave the party to which he was not invited,
cannot be made liable to pay for damages under Articles 19 and 21 of the Civil Code. Necessarily,
neither can her employer, Hotel Nikko, be held liable as its liability springs from that of its employee.58

Article 19, known to contain what is commonly referred to as the principle of abuse of rights,59 is not a
panacea for all human hurts and social grievances. Article 19 states:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith. 1awphi1.nét

Elsewhere, we explained that when "a right is exercised in a manner which does not conform with
the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby
committed for which the wrongdoer must be responsible."60 The object of this article, therefore, is to
set certain standards which must be observed not only in the exercise of one’s rights but also in the
performance of one’s duties.61 These standards are the following: act with justice, give everyone his
due and observe honesty and good faith.62 Its antithesis, necessarily, is any act evincing bad faith or
intent to injure. Its elements are the following: (1) There is a legal right or duty; (2) which is exercised
in bad faith; (3) for the sole intent of prejudicing or injuring another.63 When Article 19 is violated, an
action for damages is proper under Articles 20 or 21 of the Civil Code. Article 20 pertains to
damages arising from a violation of law64 which does not obtain herein as Ms. Lim was perfectly
within her right to ask Mr. Reyes to leave. Article 21, on the other hand, states:

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.

Article 2165 refers to acts contra bonus mores and has the following elements: (1) There is an act
which is legal; (2) but which is contrary to morals, good custom, public order, or public policy; and (3)
it is done with intent to injure.66

A common theme runs through Articles 19 and 21,67 and that is, the act complained of must be
intentional.68

As applied to herein case and as earlier discussed, Mr. Reyes has not shown that Ms. Lim was
driven by animosity against him. These two people did not know each other personally before the
evening of 13 October 1994, thus, Mr. Reyes had nothing to offer for an explanation for Ms. Lim’s
alleged abusive conduct except the statement that Ms. Lim, being "single at 44 years old," had a
"very strong bias and prejudice against (Mr. Reyes) possibly influenced by her associates in her
work at the hotel with foreign businessmen."69 The lameness of this argument need not be belabored.
Suffice it to say that a complaint based on Articles 19 and 21 of the Civil Code must necessarily fail if
it has nothing to recommend it but innuendos and conjectures.

Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to leave was likewise acceptable
and humane under the circumstances. In this regard, we cannot put our imprimatur on the appellate
court’s declaration that Ms. Lim’s act of personally approaching Mr. Reyes (without first verifying
from Mrs. Filart if indeed she invited Mr. Reyes) gave rise to a cause of action "predicated upon
mere rudeness or lack of consideration of one person, which calls not only protection of human
dignity but respect of such dignity."70 Without proof of any ill-motive on her part, Ms. Lim’s act of by-
passing Mrs. Filart cannot amount to abusive conduct especially because she did inquire from Mrs.
Filart’s companion who told her that Mrs. Filart did not invite Mr. Reyes.71 If at all, Ms. Lim is guilty
only of bad judgment which, if done with good intentions, cannot amount to bad faith.

Not being liable for both actual and moral damages, neither can petitioners Lim and Hotel Nikko be
made answerable for exemplary damages72 especially for the reason stated by the Court of Appeals.
The Court of Appeals held –

Not a few of the rich people treat the poor with contempt because of the latter’s lowly station in
life. This has to be limited somewhere. In a democracy, such a limit must be established. Social
l^vvphi1.net

equality is not sought by the legal provisions under consideration, but due regard for decency and
propriety (Code Commission, pp. 33-34). And by way of example or correction for public good and to
avert further commission of such acts, exemplary damages should be imposed upon appellees.73

The fundamental fallacy in the above-quoted findings is that it runs counter with the very facts of the
case and the evidence on hand. It is not disputed that at the time of the incident in question, Mr.
l^vvphi1.net

Reyes was "an actor of long standing; a co-host of a radio program over DZRH; a Board Member of
the Music Singer Composer (MUSICO) chaired by popular singer Imelda Papin; a showbiz
Coordinator of Citizen Crime Watch; and 1992 official candidate of the KBL Party for Governor of
Bohol; and an awardee of a number of humanitarian organizations of the Philippines."74 During his
direct examination on rebuttal, Mr. Reyes stressed that he had income75 and nowhere did he say
otherwise. On the other hand, the records are bereft of any information as to the social and
economic standing of petitioner Ruby Lim. Consequently, the conclusion reached by the appellate
court cannot withstand scrutiny as it is without basis.

All told, and as far as Ms. Lim and Hotel Nikko are concerned, any damage which Mr. Reyes might
have suffered through Ms. Lim’s exercise of a legitimate right done within the bounds of propriety
and good faith, must be his to bear alone.

WHEREFORE, premises considered, the petition filed by Ruby Lim and Nikko Hotel Manila Garden
is GRANTED. The Decision of the Court of Appeals dated 26 November 2001 and its Resolution
dated 09 July 2002 are hereby REVERSED and SET ASIDE. The Decision of the Regional Trial
Court of Quezon City, Branch 104, dated 26 April 1999 is hereby AFFIRMED. No costs.

SO ORDERED.

G.R. No. 204866, January 21, 2015

RUKS KONSULT AND CONSTRUCTION, Petitioner, v. ADWORLD SIGN AND

ADVERTISING CORPORATION* AND TRANSWORLD MEDIA ADS,
INC., Respondents.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision2 dated November
16, 2011 and the Resolution3 dated December 10, 2012 of the Court of Appeals
(CA) in CA-G.R. CV No. 94693 which affirmed the Decision4 dated August 25, 2009
of the Regional Trial Court of Makati City, Branch 142 (RTC) in Civil Case No. 03-
1452 holding, inter alia, petitioner Ruks Konsult and Construction (Ruks) and
respondent Transworld Media Ads, Inc. (Transworld) jointly and severally liable to
respondent Adworld Sign and Advertising Corporation (Adworld) for damages. cra lawred

The Facts

The instant case arose from a complaint for damages filed by Adworld against
Transworld and Comark International Corporation (Comark) before the RTC.5 In the
complaint, Adworld alleged that it is the owner of a 75 ft. x 60 ft. billboard structure
located at EDSA Tulay, Guadalupe, Barangka Mandaluyong, which was misaligned
and its foundation impaired when, on August 11, 2003, the adjacent billboard
structure owned by Transworld and used by Comark collapsed and crashed against
it. Resultantly, on August 19, 2003, Adworld sent Transworld and Comark a letter
demanding payment for the repairs of its billboard as well as loss of rental income.
On August 29, 2003, Transworld sent its reply, admitting the damage caused by its
billboard structure on Adworld’s billboard, but nevertheless, refused and failed to
pay the amounts demanded by Adworld. As Adworld’s final demand letter also went
unheeded, it was constrained to file the instant complaint, praying for damages in
the aggregate amount of P474,204.00, comprised of P281,204.00 for materials,
P72,000.00 for labor, and P121,000.00 for indemnity for loss of income.6 chanRoblesvi rtua lLaw lib rary

In its Answer with Counterclaim, Transworld averred that the collapse of its
billboard structure was due to extraordinarily strong winds that occurred instantly
and unexpectedly, and maintained that the damage caused to Adworld’s billboard
structure was hardly noticeable. Transworld likewise filed a Third-Party Complaint
against Ruks, the company which built the collapsed billboard structure in the
former’s favor. It was alleged therein that the structure constructed by Ruks had a
weak and poor foundation not suited for billboards, thus, prone to collapse, and as
such, Ruks should ultimately be held liable for the damages caused to Adworld’s
billboard structure.7
c hanRoblesv irtual Lawlib rary

For its part, Comark denied liability for the damages caused to Adworld’s billboard
structure, maintaining that it does not have any interest on Transworld’s collapsed
billboard structure as it only contracted the use of the same. In this relation,
Comark prayed for exemplary damages from Transworld for unreasonably including
it as a party-defendant in the complaint.8 chanRob lesvi rtua lLawlibra ry

Lastly, Ruks admitted that it entered into a contract with Transworld for the
construction of the latter’s billboard structure, but denied liability for the damages
caused by its collapse. It contended that when Transworld hired its services, there
was already an existing foundation for the billboard and that it merely finished the
structure according to the terms and conditions of its contract with the latter.9 cha nRoblesv irt ual Lawlib rary

The RTC Ruling

In a Decision10 dated August 25, 2009, the RTC ultimately ruled in Adworld’s favor,
and accordingly, declared, inter alia, Transworld and Ruks jointly and severally
liable to Adworld in the amount of P474,204.00 as actual damages, with legal
interest from the date of the filing of the complaint until full payment thereof, plus
attorney’s fees in the amount of P50,000.00.11 cha nRoblesv irt ual Lawlib rary

The RTC found both Transworld and Ruks negligent in the construction of the
collapsed billboard as they knew that the foundation supporting the same was weak
and would pose danger to the safety of the motorists and the other adjacent
properties, such as Adworld’s billboard, and yet, they did not do anything to
remedy the situation.12 In particular, the RTC explained that Transworld was made
aware by Ruks that the initial construction of the lower structure of its billboard did
not have the proper foundation and would require additional columns and pedestals
to support the structure. Notwithstanding, however, Ruks proceeded with the
construction of the billboard’s upper structure and merely assumed that Transworld
would reinforce its lower structure.13 The RTC then concluded that these negligent
acts were the direct and proximate cause of the damages suffered by Adworld’s
billboard.14
chanRoble svirtual Lawli bra ry

Aggrieved, both Transworld and Ruks appealed to the CA. In a Resolution dated
February 3, 2011, the CA dismissed Transworld’s appeal for its failure to file an
appellant’s brief on time.15 Transworld elevated its case before the Court, docketed
as G.R. No. 197601.16 However, in a Resolution17 dated November 23, 2011, the
Court declared the case closed and terminated for failure of Transworld to file the
intended petition for review on certiorari within the extended reglementary period.
Subsequently, the Court issued an Entry of Judgment18 dated February 22, 2012 in
G.R. No. 197601 declaring the Court’s November 23, 2011 Resolution final and
executory.

The CA Ruling

In a Decision19 dated November 16, 2011, the CA denied Ruks’s appeal and
affirmed the ruling of the RTC. It adhered to the RTC’s finding of negligence on the
part of Transworld and Ruks which brought about the damage to Adworld’s
billboard. It found that Transworld failed to ensure that Ruks will comply with the
approved plans and specifications of the structure, and that Ruks continued to
install and finish the billboard structure despite the knowledge that there were no
adequate columns to support the same.20 chanRoble svi rtual Lawli brary

Dissatisfied, Ruks moved for reconsideration,21 which was, however, denied in a

Resolution22 dated December 10, 2012, hence, this petition.

On the other hand, Transworld filed another appeal before the Court, docketed as
G.R. No. 205120.23 However, the Court denied outright Transworld’s petition in a
Resolution24 dated April 15, 2013, holding that the same was already bound by the
dismissal of its petition filed in G.R. No. 197601.

The Issue Before the Court

The primordial issue for the Court’s resolution is whether or not the CA correctly
affirmed the ruling of the RTC declaring Ruks jointly and severally liable with
Transworld for damages sustained by Adworld.

The Court’s Ruling

The petition is without merit.

At the outset, it must be stressed that factual findings of the RTC, when affirmed by
the CA, are entitled to great weight by the Court and are deemed final and
conclusive when supported by the evidence on record.25 Absent any exceptions to
this rule – such as when it is established that the trial court ignored, overlooked,
misconstrued, or misinterpreted cogent facts and circumstances that, if considered,
would change the outcome of the case26 – such findings must stand.

After a judicious perusal of the records, the Court sees no cogent reason to deviate
from the findings of the RTC and the CA and their uniform conclusion that both
Transworld and Ruks committed acts resulting in the collapse of the former’s
billboard, which in turn, caused damage to the adjacent billboard of Adworld.

Jurisprudence defines negligence as the omission to do something which a

reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something which a prudent and
reasonable man would not do.27 It is the failure to observe for the protection of the
interest of another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury.28 cha nRoblesv irt ual Lawlib rary

In this case, the CA correctly affirmed the RTC’s finding that Transworld’s initial
construction of its billboard’s lower structure without the proper foundation, and
that of Ruks’s finishing its upper structure and just merely assuming that
Transworld would reinforce the weak foundation are the two (2) successive acts
which were the direct and proximate cause of the damages sustained by Adworld.
Worse, both Transworld and Ruks were fully aware that the foundation for the
former’s billboard was weak; yet, neither of them took any positive step to
reinforce the same. They merely relied on each other’s word that repairs would be
done to such foundation, but none was done at all. Clearly, the foregoing
circumstances show that both Transworld and Ruks are guilty of negligence in the
construction of the former’s billboard, and perforce, should be held liable for its
collapse and the resulting damage to Adworld’s billboard structure. As joint
tortfeasors, therefore, they are solidarily liable to Adworld. Verily, “[j]oint
tortfeasors are those who command, instigate, promote, encourage, advise,
countenance, cooperate in, aid or abet the commission of a tort, or approve of it
after it is done, if done for their benefit. They are also referred to as those who act
together in committing wrong or whose acts, if independent of each other, unite in
causing a single injury. Under Article 219429 of the Civil Code, joint tortfeasors are
solidarily liable for the resulting damage. In other words, joint tortfeasors are each
liable as principals, to the same extent and in the same manner as if they had
performed the wrongful act themselves.”30 The Court’s pronouncement in People v.
Velasco31 is instructive on this matter, to wit:32 c hanRoble svirtual Lawlib ra ry

Where several causes producing an injury are concurrent and each is an

efficient cause without which the injury would not have happened, the
injury may be attributed to all or any of the causes and recovery may be
had against any or all of the responsible persons although under the
circumstances of the case, it may appear that one of them was more culpable, and
that the duty owed by them to the injured person was not same. No actor’s
negligence ceases to be a proximate cause merely because it does not exceed the
negligence of other actors. Each wrongdoer is responsible for the entire result and
is liable as though his acts were the sole cause of the injury.

There is no contribution between joint [tortfeasors] whose liability is solidary since

both of them are liable for the total damage. Where the concurrent or
successive negligent acts or omissions of two or more persons, although
acting independently, are in combination the direct and proximate cause of
a single injury to a third person, it is impossible to determine in what
proportion each contributed to the injury and either of them is responsible
for the whole injury. x x x. (Emphases and underscoring supplied)

In conclusion, the CA correctly affirmed the ruling of the RTC declaring Ruks jointly
and severally liable with Transworld for damages sustained by Adworld. chan rob leslaw

WHEREFORE, the petition is DENIED. The Decision dated November 16, 2011 and
the Resolution dated December 10, 2012 of the Court of Appeals in CA-G.R. CV No.
94693 are hereby AFFIRMED.

SO ORDERED. cralawlawlib rary

G.R. No. 219649

AL DELA CRUZ, Petitioner

vs.
CAPT. RENATO OCTA VIANO and WILMA OCTA VIANO, Respondents

DECISION

PERALTA, J.:

Before this Court is the Petition for Review on Certiorari under Rule 45 of the Rules of Court, dated
August 12, 2015, of petitioner Al Dela Cruz that seeks to reverse and set aside the Decision1 dated
January 30, 2014 and Resolution2 dated June 22, 2015 of the Court of Appeals (CA) reversing the:
Decision dated February 24, 2009 of the Regional Trial Court (RTC), Branch 275, Las Piñas City in a
civil case for damages.

The facts follow.

Around 9:00 p.m. on April 1, 1999, respondent Captain Renato Octaviano, a military dentist
assigned at the Office of the Chief Dental Service, Armed Forces of the Philippines, Camp
Aguinaldo, Quezon City, respondent Wilma Octaviano, Renato's mother and Janet Octaviano,
Renato's sister, rode a tricycle driven by Eduardo Y. Padilla. Respondent Wilma and Janet were
inside the sidecar of the vehicle, while Renato rode at the back of the tricycle driver. They then
proceeded to Naga Road towards the direction of CAA and BF Homes. Renato was asking his
mother for a change to complete his ₱l0.00 bill when he looked at the road and saw a light from an
oncoming car which was going too fast. The car, driven by petitioner, hit the back portion of the
tricycle where Renato was riding. The force of the impact caused the tricycle to tum around and land
on the pavement near the gutter. Thus, Renato was thrown from the tricycle and landed on the
gutter about two meters away. Renato felt severe pain in his lower extremities and went momentarily
unconscious and when he regained consciousness, he heard his sister shouting for help. A man
came followed by other people. The first man who answered Janet's call for help shouted to another
man at a distance saying: "Ikaw, dalhin mo yung sasakyan mo dito. Jkaw ang nakabangga sa kanila.
Dalhin mo sila sa ospital." They pulled Renato out of the gutter and carried him to the car. Petitioner
brought them to his house and alighted thereat for two to three minutes and then he brought the
passengers to a clinic. Renato insisted on being brought to a hospital because he realized the
severity of his injuries. Thus, Renato, hb mother, and Janet were brought to Perpetual Help Medical
Center where Renato's leg was amputated from below the knee on that same night. After his
treatment at Perpetual Help Medical Center, Renato was brought to the AFP Medical Center at V.
Luna General Hospital and stayed there for nine months for rehabilitation. Shortly before his
discharge at V. Luna, he suffered bone infection. He was brought to Fort Bonifacio Hospital where
he was operated on thrice for bone infection. Thereafter, he was treated at the same hospital for six
months. In the year 2000, he had a prosthesics attached to his leg at V. Luna at his own expense.
Renato spent a total of ₱623,268.00 for his medical bills and prosthetics.

Thus, Renato and his mother Wilma filed with the RTC a civil case for damages against petitioner
and the owner of the vehicle.

Aside from their testimonies, the complainants, herein respondents presented the testimonies of
S/Sgt. Joselito Lacuesta (S/Sgt. Lacuesta) and Antonio Fernandez.

According to S/Sgt. Lacuesta, he was somewhere along Naga Road around 9:00 p.m. when the
incident occurred. He was talking with his three friends when he felt like urinating, so he moved a
few paces away from his companions. When he was about to relieve himself, he saw an oncoming
vehicle with bright lights and also saw a tricycle which was not moving fast and after the latter
passed him by, it collided with the vehicle. He then saw someone fell down near him and when he
saw that the car was about to move, he told his companions to stop the car from leaving. Thereafter,
he noticed that the person who landed in front of him was already unconscious so he helped him
and called one of his companions to carry the injured man to the car. He told the driver of the
car "lsakay mo ito, nabangga mo ito," and then proceeded to board the injured man in front of the
car, while he told the other passengers of the tricycle to board at the back of the car. His
companions forcibly took (''pinilas") the license plate of the car and he also noticed that the driver of
the car was drunk ("nakainom"). After the car left, he and his companions stayed in the area wherein
a policeman later arrived and towed the tricycle.

Witness Antonio Fernandez, one of S/Sgt. Lacuesta's companions, corroborated the latter's
testimony.

Petitioner, on the other hand, testified that on April 1, 1999, he borrowed the car of Dr. Isagani Cirilo,
a Honda Civic registered under the name of the latter, to bring his mother to church. Thus, he then
brought his mother to the Jehovah's Witness church in Greenview which was about 20 to 25 minute
drive from their house in Naga Road, Pulanlupa. Around 6:25 p.m., he went home directly from the
church and waited for the call of his mother. Thereafter, he left the house around 8:30 p.m. and went
to pick up fish food that he previously ordered before fetching his mother. When he was along Naga
Road, he noticed a tricycle from a distance of about 100 to 120 meters away and was going the
opposite direction. He also noticed an Elf van parked along the road on the opposite side. He
flashed his low beam and high beam light to signal the tricycle. The tricycle then slowed down and
stopped a bit, hence, he also slowed down. Suddenly, the tricycle picked up speed from its stop
position and the two vehicles collided. He then stopped his car a few meters away from the collision
site and made a u-turn to confront the driver of the tricycle. He also noticed that there were already
about a dozen people around the site of the collision. He saw a man sitting on the gutter and
proceeded to move the car towards the former and asked him and his companions to help board the
injured man and the latter's co-passengers of the tricycle in the car he was driving. Thereafter, he
drove them to Perpetual Help Hospital where the man was treated for his injuries.

The testimony of Imelda Cirilo, the wife of the owner of the car, was also presented. She testified,
among others, that on the night of the accident, petitioner borrowed their car to bring the latter's
mother to the church and that upon learning of the incident, she went to Perpetual Help Hospital and
signed on the Admission Slip so that respondent Renato could be operated on without the former
admitting any liability. She also testified that she offered to help the victims, but the latter refused
and that she admitted that she did not give any financial assistance for the hospital bills nor for
medicines.

Renato Martinez, a traffic enforcer, was also presented and testified that he received a call through
radio about an incident along Naga Road, Pulanlupa, Las Piñas City around 8:30 p.m. so he
proceeded to the area and arrived there around 9:00 p.m. When he arrived at the scene, nobody
was there and that the vehicles involved in the collision were no longer there. At the scene of the
accident, he saw splinters of glass on the road but there was no blood and he also saw an Elf van
parked along the street fronting CAA. He then proceeded to Perpetual Help Hospital after he
received a call on his radio that the people involved in the accident were already at the said hospital.
At the hospital, he was able to talk with petitioner. Thereafter, he called up his base and informed the
base that the driver of the Honda Civic was at the hospital. Later on, Sgt. Soriano, the investigator-
on-duty arrived at the hospital and instructed Sgt. Martinez to accompany petitioner to the
headquarters because some relatives of respondents were asking that petitioner be brought to Fort
Bonifacio. Thus, Sgt. Martinez and petitioner boarded the Honda Civic involved in the accident and
proceeded to the headquarters.

The RTC, in its Decision dated February 24, 2009, dismissed the claim of respondents. According to
the RTC, petitioner's version of the incident was more believable because it was corroborated by
Sgt. Martinez who testified that he saw an Elf van parked along the street. The R TC also ruled that
petitioner did everything that was expected of a cautious driver. The court further ruled that the
owner of the Honda Civic, Isagani Cirilo could not be held liable because petitioner was a family
friend who merely borrowed the car and not his driver nor his employee. It was also ruled that the
liability rests on the tricycle driver who drove without license and petitioner's contributory negligence
in riding at the back of the driver in violation of Municipal Ordinance No. 35-88 that limits the
passengers of a tricycle to three persons including the driver.

Respondents appealed the R TC decision to the CA.

In its Decision dated January 30, 2014, the CA reversed the RTC's decision. According to the CA,
petitioner was negligent as shown in the police report. It also found that petitioner was positive for
alcoholic breath, thus, he violated Republic Act (R.A.) No. 4136 that prohibits any person from
driving a motor vehicle while under the influence of alcohol or narcotic drug. It also ruled that the
owner of the vehicle is equally responsible and liable for the accident and the resulting injuries that
the victims sustained. As such, the CA disposed of the case as follows:

WHEREFORE, in view of the foregoing, the decision appealed from is hereby REVERSED and SET
ASIDE. Defendants are held solidarily liable to plaintiffs and ordered to pay the plaintiffs in the
following manner:

1. pay plaintiff Wilma Octaviano the following: medical expenses, ₱l,500.00, hospital expenses,
₱l,450.00 and transportation expenses, ₱6,000.00;

2. pay plaintiff Renato Octaviano the following: hospital expenses, ₱369,354.00, medical expenses,
₱60,462.23, loss of income, ₱90,000.00;

3. pay [plaintiff] Wilma Octaviano ₱50,000.00 as and by way of moral damages;

4. pay plaintiff Renato Octaviano ₱l00,000.00 as and by way of moral damages;

5. pay plaintiffs ₱20,000.00 each as and by way of exemplary damages; and

6. pay plaintiffs ₱100,000.00 as attorney's fees.

SO ORDERED.3

Thus, the present petition after the CA denied petitioner's motion for reconsideration.

Petitioner relies upon the following grounds:

THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE PETITIONER WAS
NEGLIGENT WHILE DRIVING HIS CAR.

II

THE FINDINGS OF FACT OF THE COURT OF APPEALS ARE NOT SUPPORTED BY THE
EVIDENCE ADDUCED.

III

THE COURT OF APPEALS GRAVELY ERRED IN FAILING TO CONSIDER THAT THE

PROXIMATE CAUSE OF THE INCIDENT WAS THE FAULT OR GROSS NEGLIGENCE OF THE
TRICYCLE DRIVER.

IV

THE COURT OF APPEALS MANIFESTLY OVERLOOKED CERTAIN FACTS NOT DISPUTED BY

THE PARTIES AND WHICH, IF PROPERLY CONSIDERED, WOULD JUSTIFY A DIFFERENT
CONCLUSION.4
Petitioner insists that he was not negligent and that the driver of the tricycle was the one at fault. He
also argues that the investigation report relied upon by the CA should not have been used in
determining what actually transpired because the traffic investigator was not presented as a witness
and petitioner was not able to confront or cross-examine him regarding the report. Petitioner further
denies that he was drunk when the incident happened and that the CA erred in appreciating the
mere opinions of the witnesses that he appeared drunk at that time.

In their Comment, respondents contend that the issues raised by petitioner are factual in nature and
are not the proper subjects of a petition for review under Rule 45. They also contend that the CA did
not err in their finding that petitioner was negligent at the time of the incident.

A close reading of the present petition would show that the issues raised are factual in nature. This
Court has recognized exceptions to the rule that the findings of fact of the CA are conclusive and
binding in the following instances: (1) when the findings are grounded entirely on speculation,
surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible;
(3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension
of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the CA went
beyond the issues of the case, or its findings are contrary to the admissions of both the appellant
and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are
conclusions without citation of specific evidence on which they are based; (9) when the facts set
forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the
respondent; (10) when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; and (11) when the CA manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly considered, would justify a different
conclusion.5 Inasmuch as the R TC and the CA arrived at conflicting findings of fact on who was the
negligent party, the Court holds that an examination of the evidence of the parties needs to be
undertaken to properly determine the issue.6

The concept of negligence has been thoroughly discussed by this Court in Romulo Abrogar, et al. v.
Cosmos Bottling Company, et al.,7 thus:

Negligence is the failure to observe for the protection of the interests of another person that degree
of care, precaution, and vigilance which the circumstances justly demand, whereby such other
person suffers injury.8 Under Article 1173 of the Civil Code, it consists of the "omission of that
diligence which is required by the nature of the obligation and corresponds with the circumstances of
the person, of the time and of the place."9 The Civil Code makes liability for negligence clear under
Article 2176,10 and Article 20.11

To determine the existence of negligence, the following time-honored test has been set in Picart v.
Smith:12

The test by which to determine the existence of negligence in a particular case may be stated as
follows: 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? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the actor in the situation before him. The
law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence
and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in
the particular case. Abstract speculation cannot here be of much value but this much can be
profitably said: Reasonable men govern their conduct by the circumstances which are before them
or known to them. They are not, and are not supposed to be, omniscient of the future. Hence, they
can be expected to take care only when there is something before them to suggest or warn of
danger. Could a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by the ignoring of the suggestion born of this
prevision, is always necessary before negligence can be held to exist. Stated in these terms, the
proper criterion for determining the existence of negligence in a given case is this: Conduct is said to
be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect
harmful to another was sufficiently probable to warrant his foregoing the conduct or guarding against
its consequences.13

xxxx

In order for liability from negligence to arise, there must be not only proof of damage and negligence,
but also proof that the damage was the consequence of the negligence. The Court has said in Vda.
de Gregorio v. Go Chong Bing:14

x x x Negligence as a source of obligation both under the civil law and in American cases was
carefully considered and it was held:

We agree with counsel for appellant that under the Civil Code, as under the generally accepted
doctrine in the United States, the plaintiff in an action such as that under consideration, in order to
establish his right to a recovery, must establish by competent evidence:

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally or some person for whose acts it
must respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage."

In this case, the RTC found no reason to conclude that petitioner was negligent. The CA, however,
found the contrary. This Court must then ascertain whose evidence was preponderant, for Section
1,15 Rule 133 of the Rules of Court mandates that in civil cases, like this one, the party having the
burden of proof must establish his case by a preponderance of evidence. Burden of proof is the duty
of a party to present evidence on the facts in issue necessary to establish his claim or defense by
the amount of evidence required by law.16 It is basic that whoever alleges a fact has the burden of
proving it because a mere allegation is not evidence.17 Generally, the party who denies has no
burden to prove.18 In civil cases, the burden of proof is on the party who would be defeated if no
evidence is given on either side.19 The burden of proof is on the plaintiff if the defendant denies the
factual allegations of the complaint in the manner required by the Rules of Court, but it may rest on
the defendant if he admits expressly or impliedly the essential allegations but raises affirmative
defense or defenses, which if proved, will exculpate him from liability.20

By preponderance of evidence, according to Raymundo v. Lunaria:21

x x x is meant that the evidence as a whole adduced by one side is superior to that of the other. It
refers to the weight, credit and value of the aggregate evidence on either side and is usually
considered to be synonymous with the term "greater weight of evidence" or "greater weight of the
credible evidence." It is evidence which is more convincing to the court as worthy of belief than that
which is offered in opposition thereto.

In addition, according to United Airlines, Inc. v. Court of Appeals,22 the plaintiff must rely on the
strength of his own evidence and not upon the weakness of the defendant's.

After reviewing the records of the case, this Court affirms the findings of the CA. In ruling that
petitioner was negligent, the CA correctly appreciated the pieces of evidence presented by the
respondents, thus:

First, with regard to the damage or injury, there is no question that the plaintiffs suffered damage due
to the incident on April 1, 1999. Plaintiff Renato Octaviano's right leg was crushed by the impact of
the Honda Civic driven by defendant Dela Cruz against the tricycle where the Octavianos were riding
and as a result thereof, Renato's right leg was amputated. Plaintiff Wilma Octaviano suffered
traumatic injuries/hematoma on different parts of her body as borne by the evidence submitted to the
trial court. The damages or injuries were duly proved by preponderant evidence.

Second, with regard to the wrongful act or omission imputable to the negligence of defendant Al
Dela Cruz, We hold that the trial court missed the glaring fact that defendant Dela Cruz was guilty of
negligence.

The police report prepared by the traffic investigator SPO2 Vicente Soriano detailed what happened
on the night of April 1, 1999, to wit:

xxxx

On the Spot Investigation conducted by the undersigned, showed that Vehicle 2 while moving ahead
and upon arriving in front of said motor shop, Vehicle 2 avoided hitting another tricycle which vehicle
(Tricycle) was standing while waiting for a would-be passenger. Said Veh-2 driver swerved the car to
the left and it was at this instance when said Veh-1 was sideswiped by said Veh-2.

xxx

Weather Condition: Fair

Road condition: Concrete and Dry

Driver's Condition: Veh-1, Normal; Veh-2 Positive for Alcoholic Breath (AB)"

For a clearer understanding of the said police report, Vehicle-I referred to by Soriano is the tricycle
where plaintiffs were riding, and Vehicle-2 is the Honda Civic driven by Dela Cruz.

Was the statement in the police report that Al Dela Cruz was positive for alcoholic breath
substantiated/corroborated?

Yes. Two witnesses testified that Dela Cruz appeared to be drunk on that fateful night. Joey
Lacuesta and Antonio Fernandez were there on the spot when the incident happened. They were
the first ones to assist the victim Renato Octaviano who was slumped unconscious in the gutter.
Lacuesta was the one who boarded the injured Renato into the front seat of the car and he noticed
that the driver was drunk:
Q: You said that you placed the injured person in front of the Honda Civic, the driver was there in the
car, what, if anything did you notice about the condition of the driver of the car?

A: Nakainom, I noticed that because when I boarded the injured person into the front passenger
seat, I noticed that he is drunk.

Antonio Fernandez heard his friend Aries Sy shout at the driver of the car to stop when it appeared
to by continuously moving. Fernandez also noted that the driver appeared to be drunk, thus:

Q: Now you said that the driver of the car was drunk. Did you say that when you testified?

A: Yes, sir. Lasing yung driver.

Q: What made you think that this driver of the car was drunk?

A: Because of his actions and he was also mad.

Q: Because he was mad, then you thought that he was drunk. x x x?

A: No, Sir. You can see or you can observe the actions of a person if he is drunk.

xxxx

More importantly, the law prohibits drunk driving. Republic Act No. 4136, Chapter IV, Article V,
Section 53 known as Land Transportation and Traffic Code provides that no person shall drive a
motor vehicle while under the influence of liquor or narcotic drug. It is established by plaintiffs
evidence that defendant Dela Cruz drove the Honda Civic while under the influence of alcohol thus
proving his negligence.

With regard to the third requisite, that there be a direct relation of cause and effect between the
damage or injury and the fault or negligence is clearly present in the case at bar. Had defendant
Dela Cruz exercised caution, his Honda Civic would not have collided with the tricycle and plaintiffs
leg would not be crushed necessitating its amputation. The cause of the injury or damage to the
plaintiff’s leg is the negligent act of defendant Dela Cruz.

The last requisite is that there be no pre-existing contractual relation between the parties. It is
undeniable that defendant and plaintiffs had no prior contractual relation, that they were strangers to
each other before the incident happened. Thus, the four requisites that must concur under Article
2176 are clearly established in the present case. Plaintiffs are entitled to claim damages.23

Petitioner argues that the CA erred in relying on the police report without petitioner having the
chance to cross-examine the police officer who prepared the same. Be that as it may, the contents
of the said police report are corroborated by the testimonies of the other witnesses presented before
the court. The said contents of the police report are more believable than the version of petitioner of
what transpired. As correctly observed by the CA:

Dela Cruz narrated in his testimony that he saw a parked Elf van on the opposite road and the
tricycle also on the opposite road going to the opposite direction. He claims that he flashed his low
beam and high beam to warn the tricycle, the tricycle stopped momentarily and then picked up
speed "umarangkada" and that was why the two vehicles collided. However, he admitted that the
point of impact of the two vehicles was "lagpas fang konti" from the front of the parked Elf. He could
not stop. He did not know what to do. He slowed down. He did not stop but continued driving. If it
were true that as far as about 100-120 meters away he already saw the parked Elf van and the
tricycle, he could have slowed down or stopped to give way to the tricycle to avoid collision. In fact, if
the collision point was right ahead of the front of the parked Elf van, it means that the tricycle was
already past the parked Elf and it was Dela Cruz who forced his way into the two-way road. More
evident is that the tricycle was hit at the back portion meaning it was already turning after passing
the parked Elf. Had Dela Cruz slowed down or stopped a short while to let the tricycle pass clear of
the van, then the incident would not have happened. The reasonable foresight required of a cautious
driver was not exercised by defendant Dela Cruz.24

As to the denial of petitioner that he was drunk at the time of the accident, whether or not he was in
a state of inebriation is inconsequential given the above findings. His being sober does not and will
1âwphi1

not erase the fact that he was still negligent and that the proximate cause of the collision was due to
his said negligence. Proximate cause is "that which, in natural and continuous sequence, unbroken
by any new cause, produces an event, and without which the event would not have occurred."25 As
such, petitioner is wrong when he claims that the proximate cause of the accident was the fault of
the tricycle driver.

Neither is it correct to impute contributory negligence on the part of the tricycle driver and
respondent Renato when the latter had violated a municipal ordinance that limits the number of
passengers for each tricycle for hire to three persons including the driver. Contributory negligence is
conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered,
which falls below the standard to which he is required to conform for his own protection.26 To hold a
person as having contributed to his injuries, it must be shown that he performed an act that brought
about his injuries in disregard of warning or signs of an impending danger to health and body.27 To
prove contributory negligence, it is still necessary to establish a causal link, although not proximate,
between the negligence of the party and the succeeding injury. In a legal sense, negligence is
contributory only when it contributes proximately to the injury, and not simply a condition for its
occurrence.28 In this case, the causal link between the alleged negligence of the tricycle driver and
respondent Renato was not established. This court has appreciated that negligence per se, arising
from the mere violation of a traffic statute, need not be sufficient in itself in establishing liability for
damages.29 Also, noteworthy is the ruling of the CA as to the matter, thus:

The trial court absolved defendants of liability because of the failure of the plaintiffs to present the
tricycle driver and thus concluding that plaintiffs suppressed evidence adverse to them. This is error
on the part of the trial court. The non-presentation of the tricycle driver as a witness does not affect
the claim of the plaintiffs-appellants against herein defendants-appellees. Even granting that the
tricycle driver was presented in court and was proved negligent, his negligence cannot cancel out
the negligence of defendant Dela Cruz, because their liabilities arose from different sources. The
obligation or liability of the tricycle driver arose out of the contract of carriage between him and
petitioners whereas defendant Dela Cruz is liable under Article 2176 of the Civil Code or under
quasi-delicts. There is ample evidence to show that defendant Dela Cruz was negligent within the
purview of Article 2176 of the Civil Code, hence, he cannot escape liability.30

This Court further agrees with the CA that the respondents are entitled to the award of moral and
exemplary damages. Moral damages, x x x, may be awarded to compensate one for manifold
injuries such as physical suffering, mental anguish, serious anxiety, besmirched reputation, wounded
feelings and social humiliation. These damages must be understood to be in the concept of grants,
not punitive or corrective in nature, calculated to compensate the claimant for the injury suffered.
Although incapable of exactness and no proof of pecuniary loss is necessary in order that moral
damages may be awarded, the amount of indemnity being left to the discretion of the court, it is
imperative, nevertheless, that (1) injury must have been suffered by the claimant, and (2) such injury
must have sprung from any of the cases expressed in Article 221931 and Article 222032 of the Civil
Code, x x x33 Also known as "punitive" or "vindictive" damages, exemplary or corrective damages are
intended to serve as a deterrent to serious wrongdoings, and as a vindication of undue sufferings
and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous
conduct. These terms are generally, but not always, used interchangeably. In common law, there is
preference in the use of exemplary damages when the award is to account for injury to feelings and
for the sense of indignity and humiliation suffered by a person as a result of an injury that has been
maliciously and wantonly inflicted,34 the theory being that there should be compensation for the hurt
caused by the highly reprehensible conduct of the defendant - associated with such circumstances
as willfulness, wantonness, malice, gross negligence or recklessness, oppression, insult or fraud or
gross fraud35 - that intensifies the injury. The terms punitive or vindictive damages are often used to
refer to those species of damages that may be awarded against a person to punish him for his
outrageous conduct. In either case, these damages are intended in good measure to deter the
wrongdoer and others like him from similar conduct in the future.36

In awarding the above, the CA correctly ruled that:

It is extant in the records that defendants did not overturn or disprove the plaintiffs' claim for actual
damages such as the hospital bills/expenses which were duly supported by documentary evidence
(receipts). It was also duly proven that defendant Al Dela Cruz acted with gross disregard for the
suffering of his victims when he refused to board them in his car and only did so when forced by the
by-standers who assisted the victims, when he drove to his house first before driving to a clinic then
to [the] hospital when it was obvious that Renato Octaviano's wound was severe and needed
immediate professional attention. These insensitivity of defendant caused suffering to the plaintiffs
that must be compensated.37

As to the award of attorney's fees, Article 2208 of the New Civil Code provides the following:

ART. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than
judicial costs, cannot be recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or
to incur expenses to protect his interest;

(3) In criminal cases of malicious prosecution against the plaintiff;

(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs
plainly valid, just and demandable claim;

(6) In actions for legal support;

(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;

(8) In actions for indemnity under workmen's compensation and employer's liability laws;

(9) In a separate civil action to recover civil liability arising from a crime;

(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and equitable that attorney's fees and expenses
of litigation should be recovered.

In this case, since exemplary damages are awarded, the award of attorney's fees is necessary.

WHEREFORE, the Petition for Review on Certiorari under Rule 45 of the Rules of Court, dated
August 12, 2015, of petitioner Al Dela Cruz is DENIED for lack of merit. Consequently, the Decision
dated January 30, 2014 and Resolution dated June 22, 2015 of the Court of Appeals in CAG. R. CV
No. 93399 are AFFIRMED.

SO ORDERED.

G.R. No. 190022 February 15, 2012

PHILIPPINE NATIONAL RAILWAYS CORPORATION, JAPHET ESTRANAS and BEN

SAGA, Petitioners,
vs.
PURIFICACION VIZCARA, MARIVIC VIZCARA, CRESENCIA A. NATIVIDAD, HECTOR
VIZCARA, JOEL VIZCARA and DOMINADOR ANTONIO, Respondents.

DECISION

REYES, J.:

Nature of the Petition

Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, seeking to annul and set aside the Decision1 dated July 21, 2009 of the Court of Appeals
(CA) in CA-G.R. CV No. 90021, which affirmed with modification the Decision2 dated March 20, 2007
of the Regional Trial Court (RTC), Branch 40, Palayan City, and Resolution3 dated October 26, 2009,
which denied the petitioners’ motion for reconsideration.

The Antecedent Facts

On May 14, 2004, at about three o’clock in the morning, Reynaldo Vizcara (Reynaldo) was driving a
passenger jeepney headed towards Bicol to deliver onion crops, with his companions, namely,
Cresencio Vizcara (Cresencio), Crispin Natividad (Crispin), Samuel Natividad (Samuel), Dominador
Antonio (Dominador) and Joel Vizcara (Joel). While crossing the railroad track in Tiaong, Quezon, a
Philippine National Railways (PNR) train, then being operated by respondent Japhet Estranas
(Estranas), suddenly turned up and rammed the passenger jeepney. The collision resulted to the
instantaneous death of Reynaldo, Cresencio, Crispin, and Samuel. On the other hand, Dominador
and Joel, sustained serious physical injuries.4

At the time of the accident, there was no level crossing installed at the railroad crossing. Additionally,
the "Stop, Look and Listen" signage was poorly maintained. The "Stop" signage was already faded
while the "Listen" signage was partly blocked by another signboard.5

On September 15, 2004, the survivors of the mishap, Joel and Dominador, together with the heirs of
the deceased victims, namely, Purificacion Vizcara, Marivic Vizcara, Cresencia Natividad and Hector
Vizcara, filed an action for damages against PNR, Estranas and Ben Saga, the alternate driver of
the train, before the RTC of Palayan City. The case was raffled to Branch 40 and was docketed as
Civil Case No. 0365-P. In their complaint, the respondents alleged that the proximate cause of the
fatalities and serious physical injuries sustained by the victims of the accident was the petitioners’
gross negligence in not providing adequate safety measures to prevent injury to persons and
properties. They pointed out that in the railroad track of Tiaong, Quezon where the accident
happened, there was no level crossing bar, lighting equipment or bell installed to warn motorists of
the existence of the track and of the approaching train. They concluded their complaint with a prayer
for actual, moral and compensatory damages, as well as attorney’s fees.6

For their part, the petitioners claimed that they exercised due diligence in operating the train and
monitoring its roadworthiness. They asseverate that right before the collision, Estranas was driving
the train at a moderate speed. Four hundred (400) meters away from the railroad crossing, he
started blowing his horn to warn motorists of the approaching train. When the train was only fifty (50)
meters away from the intersection, respondent Estranas noticed that all vehicles on both sides of the
track were already at a full stop. Thus, he carefully proceeded at a speed of twenty-five (25)
kilometers per hour, still blowing the train’s horn. However, when the train was already ten (10)
meters away from the intersection, the passenger jeepney being driven by Reynaldo suddenly
crossed the tracks. Estranas immediately stepped on the brakes to avoid hitting the jeepney but due
to the sheer weight of the train, it did not instantly come to a complete stop until the jeepney was
dragged 20 to 30 meters away from the point of collision.7

The Ruling of the Trial Court

After trial on the merits, the RTC rendered its Decision8 dated March 20, 2007, ruling in favor of the
respondents, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered ordering defendants Philippine

National Railways Corporation (PNR), Japhet Estranas and Ben Saga to, jointly and severally pay
the following amounts to:

1. a) PURIFICACION VIZCARA:

1) P50,000.00, as indemnity for the death of Reynaldo Vizcara;

2) P35,000.00, for funeral expenses;

3) P5,000.00 for re-embalming expenses;

4) P40,000.00 for wake/interment expenses;

5) P300,000.00 as reimbursement for the value of the jeepney with license

plate no. DTW-387;

6) P200,000.00 as moral damages;

7) P100,000.00 as exemplary damages; and

8) P20,000.00 for Attorney’s fees.

b) MARIVIC VIZCARA:

1) P50,000.00, as indemnity for the death of Cresencio Vizcara;

 2) P200,000.00 as moral damages;

3) P100,000.00 as exemplary damages; and

4) P20,000.00 for Attorney’s fees.

c) HECTOR VIZCARA:

1) P50,000.00 as indemnity for the death of Samuel Vizcara;

2) P200,000.00 as moral damages;

3) P100,000.00 as exemplary damages; and

4) P20,000.00 for Attorney’s fees.

d) CRESENCIA NATIVIDAD:

1) P50,000.00 as indemnity for the death of Crispin Natividad;

2) P200,000.00 as moral damages;

3) P100,000.00 as exemplary damages; and

4) P20,000.00 for Attorney’s fees.

e) JOEL VIZCARA

1) P9,870.00 as reimbursement for his actual expenses;

2) P50,000.00 as moral damages;

3) P25,000.00 as exemplary damages; and

4) P10,000.00 for Attorney’s fees.

f) DOMINADOR ANTONIO

1) P63,427.00 as reimbursement for his actual expenses;

2) P50,000.00 as moral damages;

3) P25,000.00 as exemplary damages; and

4) P10,000.00 for Attorney’s fees.

and

2. Costs of suit.
SO ORDERED.9

The Ruling of the CA

Unyielding, the petitioners appealed the RTC decision to the CA. Subsequently, on July 21, 2009,
the CA rendered the assailed decision, affirming the RTC decision with modification with respect to
the amount of damages awarded to the respondents. The CA disposed, thus:

WHEREFORE, instant appeal is PARTIALLY GRANTED. The assailed Decision is AFFIRMED

WITH MODIFICATION, as follows:

(1) The award of P5,000.00 for re-embalming expenses and P40,000.00 for wake/interment
expenses to PURIFICACION VIZCARA is deleted. In lieu thereof, P25,000.00 as temperate
damages is awarded;

(2) The award of moral damages to PURIFICACION VIZCARA, MARIVIC VIZCARA,

HECTOR VIZCARA and CRESENCIA NATIVIDAD is hereby reduced from P200,000.00 to
P100,000.00 each while moral damages awarded to JOEL VIZCARA and DOMINADOR
ANTONIO are likewise reduced from P50,000.00 to P25,000.00;

(3) The award of exemplary damages to PURIFICACION VIZCARA, MARIVIC VIZCARA,

HECTOR VIZCARA and CRESENCIA NATIVIDAD is hereby reduced from P100,000.00 to
P50,000.00 each while exemplary damages awarded to JOEL VIZCARA and DOMINADOR
ANTONIO are likewise reduced from P25,000.00 to P12,500.00; and

(4) The award for attorney’s fees in favor of the Appellees as well as the award of
P300,000.00 to Appellee PURIFICACION as reimbursement for the value of the jeepney is
DELETED.

SO ORDERED.10

In the assailed decision, the CA affirmed the RTC’s finding of negligence on the part of the
petitioners. It concurred with the trial court's conclusion that petitioner PNR's failure to install
sufficient safety devices in the area, such as flagbars or safety railroad bars and signage, was the
proximate cause of the accident. Nonetheless, in order to conform with established jurisprudence, it
modified the monetary awards to the victims and the heirs of those who perished due to the collision.

The petitioners filed a Motion for Reconsideration11 of the decision of the CA. However, in a
Resolution12 dated October 26, 2009, the CA denied the same.

Aggrieved, the petitioners filed the present petition for review on certiorari, raising the following
grounds:

THE CA ERRED IN FINDING THAT THE PROXIMATE CAUSE OF THE ACCIDENT WAS
THE NEGLIGENCE OF THE PETITIONERS;

II
 THE CA ERRED IN HOLDING THAT THE DOCTRINE OF LAST CLEAR CHANCE FINDS
NO APPLICATION IN THE INSTANT CASE;

III

THE CA ERRED IN FINDING NEGLIGENCE ON THE PART OF THE PETITIONERS OR

ERRED IN NOT FINDING AT THE LEAST, CONTRIBUTORY NEGLIGENCE ON THE
PART OF THE RESPONDENTS.13

The petitioners maintain that the proximate cause of the collision was the negligence and
recklessness of the driver of the jeepney. They argue that as a professional driver, Reynaldo is
presumed to be familiar with traffic rules and regulations, including the right of way accorded to
trains at railroad crossing and the precautionary measures to observe in traversing the same.
However, in utter disregard of the right of way enjoyed by PNR trains, he failed to bring his jeepney
to a full stop before crossing the railroad track and thoughtlessly followed the ten-wheeler truck
ahead of them. His failure to maintain a safe distance between the jeepney he was driving and the
truck ahead of the same prevented him from seeing the PNR signage displayed along the crossing.14

In their Comment,15 the respondents reiterate the findings of the RTC and the CA that the petitioners'
negligence in maintaining adequate and necessary public safety devices in the area of the accident
was the proximate cause of the mishap. They asseverate that if there was only a level crossing bar,
warning light or sound, or flagman in the intersection, the accident would not have happened. Thus,
there is no other party to blame but the petitioners for their failure to ensure that adequate warning
devices are installed along the railroad crossing.16

This Court’s Ruling

The petition lacks merit.

The petitioners’ negligence was the proximate cause of the accident.

Article 2176 of the New Civil Code prescribes a civil liability for damages caused by a person's act or
omission constituting fault or negligence. It states:

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 was no pre-
existing contractual relation between the parties, is called quasi-delict and is governed by the
provisions of this chapter.

In Layugan v. Intermediate Appellate Court,17 negligence was defined as the omission to do

something which a reasonable man, guided by considerations which ordinarily regulate the conduct
of human affairs, would do, or the doing of something which a prudent and reasonable man would
not do. It is the failure to observe for the protection of the interests of another person, that degree of
care, precaution, and vigilance which the circumstances justly demand, whereby such other person
suffers injury.18 To determine the existence of negligence, the time-honored test was: 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? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the actor in the situation before him. The
law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence
and prudence and determines liability by that.19
In the instant petition, this Court is called upon to determine whose negligence occasioned the ill-
fated incident. The records however reveal that this issue had been rigorously discussed by both the
RTC and the CA. To emphasize, the RTC ruled that it was the petitioners’ failure to install adequate
safety devices at the railroad crossing which proximately caused the collision. This finding was
affirmed by the CA in its July 21, 2009 Decision. It is a well-established rule that factual findings by
the CA are conclusive on the parties and are not reviewable by this Court. They are entitled to great
weight and respect, even finality, especially when, as in this case, the CA affirmed the factual
findings arrived at by the trial court.20

Furthermore, in petitions for review on certiorari, only questions of law may be put into issue.
Questions of fact cannot be entertained.21 To distinguish one from the other, a question of law exists
when the doubt or difference centers on what the law is on a certain state of facts. A question of fact,
on the other hand, exists if the doubt centers on the truth or falsity of the alleged facts.22 Certainly, the
finding of negligence by the RTC, which was affirmed by the CA, is a question of fact which this
Court cannot pass upon as this would entail going into the factual matters on which the negligence
was based.23 Moreover, it was not shown that the present case falls under any of the recognized
exceptions24 to the oft repeated principle according great weight and respect to the factual findings of
the trial court and the CA.

At any rate, the records bear out that the factual circumstances of the case were meticulously
scrutinized by both the RTC and the CA before arriving at the same finding of negligence on the part
of the petitioners, and we found no compelling reason to disturb the same. Both courts ruled that the
petitioners fell short of the diligence expected of it, taking into consideration the nature of its
business, to forestall any untoward incident. In particular, the petitioners failed to install safety
railroad bars to prevent motorists from crossing the tracks in order to give way to an approaching
train. Aside from the absence of a crossing bar, the "Stop, Look and Listen" signage installed in the
area was poorly maintained, hence, inadequate to alert the public of the impending danger. A
reliable signaling device in good condition, not just a dilapidated "Stop, Look and Listen" signage, is
needed to give notice to the public. It is the responsibility of the railroad company to use reasonable
care to keep the signal devices in working order. Failure to do so would be an indication of
negligence.25 Having established the fact of negligence on the part of the petitioners, they were
rightfully held liable for damages.

There was no contributory negligence on the part of the respondents.

As to whether there was contributory negligence on the part of the respondents, this court rule in the
negative. Contributory negligence is conduct on the part of the injured party, contributing as a legal
cause to the harm he has suffered, which falls below the standard which he is required to conform
for his own protection. It is an act or omission amounting to want of ordinary care on the part of the
person injured which, concurring with the defendant’s negligence, is the proximate cause of the
injury.26 Here, we cannot see how the respondents could have contributed to their injury when they
were not even aware of the forthcoming danger. It was established during the trial that the jeepney
carrying the respondents was following a ten-wheeler truck which was only about three to five
meters ahead. When the truck proceeded to traverse the railroad track, Reynaldo, the driver of the
jeepney, simply followed through. He did so under the impression that it was safe to proceed. It
bears noting that the prevailing circumstances immediately before the collision did not manifest even
the slightest indication of an imminent harm. To begin with, the truck they were trailing was able to
safely cross the track. Likewise, there was no crossing bar to prevent them from proceeding or, at
least, a stoplight or signage to forewarn them of the approaching peril. Thus, relying on his faculties
of sight and hearing, Reynaldo had no reason to anticipate the impending danger.27 He proceeded to
cross the track and, all of a sudden, his jeepney was rammed by the train being operated by the
petitioners. Even then, the circumstances before the collision negate the imputation of contributory
negligence on the part of the respondents. What clearly appears is that the accident would not have
happened had the petitioners installed reliable and adequate safety devices along the crossing to
ensure the safety of all those who may utilize the same.

At this age of modern transportation, it behooves the PNR to exert serious efforts to catch up with
the trend, including the contemporary standards in railroad safety. As an institution established to
alleviate public transportation, it is the duty of the PNR to promote the safety and security of the
general riding public and provide for their convenience, which to a considerable degree may be
accomplished by the installation of precautionary warning devices. Every railroad crossing must be
installed with barriers on each side of the track to block the full width of the road until after the train
runs past the crossing. To even draw closer attention, the railroad crossing may be equipped with a
device which rings a bell or turns on a signal light to signify the danger or risk of crossing. It is
similarly beneficial to mount advance warning signs at the railroad crossing, such as a reflectorized
crossbuck sign to inform motorists of the existence of the track, and a stop, look and listen signage
to prompt the public to take caution. These warning signs must be erected in a place where they will
have ample lighting and unobstructed visibility both day and night. If only these safety devices were
installed at the Tiaong railroad crossing and the accident nevertheless occurred, we could have
reached a different disposition in the extent of the petitioner’s liability.

The exacting nature of the responsibility of railroad companies to secure public safety by the
installation of warning devices was emphasized in Philippine National Railways v. Court of
Appeals,28 thus:

[I]t may broadly be stated that railroad companies owe to the public a duty of exercising a
reasonable degree of care to avoid injury to persons and property at railroad crossings, which duties
pertain both to the operation of trains and to the maintenance of the crossings. Moreover, every
corporation constructing or operating a railway shall make and construct at all points where such
railway crosses any public road, good, sufficient, and safe crossings, and erect at such points, at
sufficient elevation from such road as to admit a free passage of vehicles of every kind, a sign with
large and distinct letters placed thereon, to give notice of the proximity of the railway, and warn
persons of the necessity of looking out for trains. The failure of the PNR to put a cross bar, or signal
light, flagman or switchman, or semaphore is evidence of negligence and disregard of the safety of
the public, even if there is no law or ordinance requiring it, because public safety demands that said
device or equipment be installed.29

The responsibility of the PNR to secure public safety does not end with the installation of safety
equipment and signages but, with equal measure of accountability, with the upkeep and repair of the
same. Thus, in Cusi v. Philippine National Railways,30 we held:

Jurisprudence recognizes that if warning devices are installed in railroad crossings, the travelling
public has the right to rely on such warning devices to put them on their guard and take the
necessary precautions before crossing the tracks. A need, therefore, exists for the railroad company
to use reasonable care to keep such devices in good condition and in working order, or to give
notice that they are not operating, since if such a signal is misunderstood it is a menace. Thus, it has
been held that if a railroad company maintains a signalling device at a crossing to give warning of
the approach of a train, the failure of the device to operate is generally held to be evidence of
negligence, which maybe considered with all the circumstances of the case in determining whether
the railroad company was negligent as a matter of fact. 31

The maintenance of safety equipment and warning signals at railroad crossings is equally important
as their installation since poorly maintained safety warning devices court as much danger as when
none was installed at all. The presence of safety warning signals at railroad crossing carries with it
the presumption that they are in good working condition and that the public may depend on them for
assistance. If they happen to be neglected and inoperative, the public may be misled into relying on
the impression of safety they normally convey and eventually bring injury to themselves in doing so.

The doctrine of last clear chance is not applicable.

Finally, the CA correctly ruled that the doctrine of last clear chance is not applicable in the instant
case. The doctrine of last clear chance provides that where both parties are negligent but the
negligent act of one is appreciably later in point of time than that of the other, or where it is
impossible to determine whose fault or negligence brought about the occurrence of the incident, the
one who had the last clear opportunity to avoid the impending harm but failed to do so, is chargeable
with the consequences arising therefrom. Stated differently, the rule is that the antecedent
negligence of a person does not preclude recovery of damages caused by the supervening
negligence of the latter, who had the last fair chance to prevent the impending harm by the exercise
of due diligence.32 To reiterate, the proximate cause of the collision was the petitioners’ negligence in
ensuring that motorists and pedestrians alike may safely cross the railroad track. The unsuspecting
driver and passengers of the jeepney did not have any participation in the occurrence of the
unfortunate incident which befell them. Likewise, they did not exhibit any overt act manifesting
disregard for their own safety. Thus, absent preceding negligence on the part of the respondents,
the doctrine of last clear chance cannot be applied.

WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals
dated July 21, 2009 in CA-G.R. CV No. 90021 is hereby AFFIRMED.

SO ORDERED.