TORTS AND DAMAGES
PERSONS WHO CAN SUE AND BE SUED
TORTS
Tort - tort is an unlawful violation of private
right, not created by contract or any previous
existing lawful relation, and which gives rise to
an action for damages.
Philippine Tort Law
Sources:
1. The New Civil Code is the primary statute
that governs torts in the Philippines.
 Art. 1157 includes Quasi-Delict as source
of obligation
 Other tort provisions are found in other
titles of the code and in special laws
Torts in Anglo-American Law concept includes
intentional criminal acts
Quasi-delict or Culpa Aquiliana is limited to
negligent acts or omissions.
PURPOSE OF TORTS
1. To provide a peaceful means for adjusting
the rights of parties who might otherwise take
the law into their own hands;
2. Deter wrongful conduct;
3. To encourage socially responsible
behaviour;
4. To restore injured parties to their original
condition, insofar as the law can do this, by
compensating them for their injury.
Fundamental Principles
1. Equity and Justice - this principle demands
that persons who may have been damaged by
wrongful or negligent acts of another are
compensated.
2. Democracy - torts is used to control to
minimize wrongful acts or omissions.
3. Respect for Human Dignity - torts is a form
of compensation to show that law recognizes
the human dignity.
FOR TORT
1. Plaintiffs - Persons entitled for damages
2. Defendants - Persons who may be liable
REMEDIES
1. Compensatory - action for damages
2. Preventive - Prayer for injunction or
temporary restraining order
ALTERNATIVE COMPENSATION SCHEMES
1. Insurance
2. Worker’s Compensation
NEGLIGENCE
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 do.
Definition under the Civil Code
Article 1173. The fault or negligence of the
obligor consists in the omission of that
diligence which is required by the nature of the
obligation and corresponds with the
circumstances of the persons, of the time and
of the place. When negligence shows bad
faith, the provisions of articles 1171 and 2201,
paragraph 2, shall apply.
Short Definition
Failure of one to observe reasonable care or
diligence required by law which a prudent and
reasonable man would do.
KINDS OF NEGLIGENCE
1. Culpa Contractual - Negligence incident to
the performance of a contractual obligation
2. Culpa Aquiliana - Quasi-Delict
3. Culpa Criminal - acts or omissions resulting
from imprudence, negligence, lack of skill, lack
of foresight.
TEST OF NEGLIGENCE

Did the defendant in doing the alleged
negligent act use that reasonable care and
caution which an ordinarily prudent person
would have used in the same situation?
Note: Forseeability in negligence requires that
the risk or danger is apparent.
CHARACTERISTICS OF NEGLIGENCE
(NUFR)
1. Negligence is a conduct - state of mind of
the actor is not important
2. Unreasonable or Undue Risk - it is a
conduct that creates undue risk to others
3. Forseeability - The risk or danger must be
apparent
4. Probability - great probability that damage
would result from the action or inaction.
ONG vs. Metropolitan Water District
A boy scout drowned in a swimming pool. The
parents as plaintiffs filed an action to recover
from defendant and its employees.
The issue is whether the defendant is
negligent.
Held: The present action is governed by Article
2176 in relation to Article 2080 of the new Civil
Code. The first article provides that “whoever
by act or omission causes damage to another,
there being fault or negligence, is obliged to
pay for the damages done.” Such fault or
negligence is called quasi-delict. Under the
second article, this obligation is demandable
not only for one’s own acts or omissions but
also for those of persons for whom one is
responsible.
CALCULATION OF RISK
What must be considered: (MPCUN)
1. Magnitude of risk
2. The value or importance of that which is
exposed to the risk, which is the object that the
law desires to protect, and may be called the
principal object;
3. A person who takes a risk of injuring the
principal object usually does so because he
has some reason of his own for such conduct
(referred to as the collateral object);
4. The probability that the collateral object will
be attained by the conduct which involves risk
to the principal (the utility of the risk);
5. The probability that the collateral object will
be attained without taking the risk (the
necessity of the risk).
Example
“The plaintiff’s intestate, seeing a child on a
railroad track in front of a rapidly approaching
train, went upon the track to save him. He did
save him, but was himself killed by train.
The jury were allowed to find that he had not
been guilty of contributory negligence. The
question was of course whether he had
exposed himself to an unreasonable great risk.
Here the above-mentioned elements of
reasonableness were as follows:
CIRCUMSTANCES THAT MAY AFFECT
NEGLIGENCE
1. Time - example: driving during night
2. Place - example: Discharging a gun in
crowded than isolated and uninhabited place
3. Emergency - Emergency rule, one who finds
himself in a place of danger, and is required to
act without time to consider the best means
that may be adopted to avoid the danger, is not
guilty of negligence.
4. Gravity of Harm to be Avoided
5. Alternative Course of Action - example:
collision to truck and the alternative is colliding
to a tree instead.
6. Social Value or Utility of Activity - Danger in
use of high voltage wires is disregarded
because of social value of providing electricity
to the public.
7. Person Exposed to Risk - higher degree of
diligence if the person involved is a child.
STANDARD OF CONDUCT
- Diligence of a good father of a family.
What should be determined in negligence
cases is what is foreseeable to a good father of
a family. A good father of a family is likewise
referred to as the reasonable man, man of
ordinary intelligence and prudence, or ordinary
reasonable prudent man.
ATTRIBUTES OF A GOOD FATHER OF A
FAMILY
Circumstances that are material in the
determination of negligence.
1. Knowledge and experience of the actor
If he has knowledge of the possible occurrence
of the danger or risk, despite lack of signs or
warnings, he may be found negligent.
2. Children
The rule in this jurisdiction is that “the care and
caution required of a child is according to his
maturity and capacity only and this is to be
determined in each case by the circumstances
of the case.”
Child may still be liable even negligence on his
part is absent. Under the RPC, he can still be
subsidiarily liable with his properties. This is
liability without fault.
A child aged 9 or below is CONCLUSIVELY
PRESUMED to be incapable of negligence
A child aged above 9 but below 15 years old
creates a disputable presumption of absence
of negligence. The rule regarding maturity and
capacity applies only to this age.
This rule is based on exempting circumstances
under RPC.
3. Physical Disability
In The Common Law, Justice Holmes
explained that the weaknesses of a person will
not be an excuse in negligence cases. A weak,
clumsy or accident prone person must come
up to the standard of a reasonable man,
otherwise, he will be considered negligent.
However, the rule is different if the defect is not
a mere weakness but one amounting to real
disability. The Constitution recognizes the
rights of disabled persons. In fact, it mandates
the creation of a “special agency for disabled
persons for their rehabilitation, self-
development and self-reliance, and their
integration in the mainstream of the society.”
(Section 13, Article XIII, 1987 Constitution).
4. Experts and Professionals
An expert should exhibit the care and skill of
one ordinarily skilled in the particular field that
he is in. In fact, when a person hold himself out
as being competent to do things requiring
professional skills, he will be held liable for
negligence if he fails to exhibit the care and
skill of one ordinarily skilled in the particular
work which he attempted to do.
5. Nature of Activity
There are activities, however, which by nature
impose duties to exercise a higher degree of
diligence. Banks, for instance, “handle daily
transactions involving millions of pesos. By the
very nature of their work, the degree of
responsibility, care and trustworthiness
expected of their employees and officials is far
greater than those of ordinary clerks and
employees.
Common carriers are also required to exercise
utmost diligence
in the performance of their functions.
6. Intoxication
Mere intoxication is not negligence, nor does
the mere fact of intoxication establish want of
ordinary care. It is but a circumstance to be
considered with the other evidence tending to
prove negligence. It is a general rule that it is
immaterial whether a man is drunk or sober if
no want of ordinary care or prudence can be
imputed to him, and no greater degree of care
is required to be exercised by an intoxicated
man for his own protection than a sober one. If
one’s conduct is characterized by a proper
degree of care and prudence, it is immaterial
whether he is drunk or sober.
However, as pointed out earlier, intoxication
may be one of the circumstances to be
considered to prove negligence. For instance,
intoxication may be considered to prove
negligence in driving a motor vehicle.
7. Insanity
Under the Revised Penal Code, an insane
person is exempt from criminal liability.
However, by express provision of law, there
may be civil liability even when the perpetrator
is held to be exempt from criminal liability.
“Such is the case of a lunatic or demented
person who, in spite of his deranged mind, is
still reasonably and justly liable with his
property for the consequences of his acts,
even though they be performed unwittingly.
The same rule is applicable under the Civil
Code. The insanity of a person does not
excuse him or his guardian from liability based
on quasi-delict.
The bases for holding a permanently insane
person liable for his tort are as follows:
(a) Where one of two innocent persons must
suffer a loss it should be borne by the one who
occasioned it;
(b) to induce those interested in the estate of
the insane person (if he has one) to restrain
and control him; and
(c) the fear that an insanity defense would lead
to false claims of insanity to avoid liability.
(Breunig vs. American Family Insurance Co.,
173 N.W. 2d 619 [1970]).
8. Women
There is no question that when it comes to
physical features, there is a distinction
between man and woman. A man is generally
physically stronger than a woman and the
same should be taken into consideration in
determining if the defendant, who is a woman,
was negligent.
There is no question that when it comes to
physical features, there is a distinction
between man and woman. A man is generally
physically stronger than a woman and the
same should be taken into consideration in
determining if the defendant, who is a woman,
was negligent.
eg. Woman driving a car stopped at a lighted
place in order to change flat tires. (Valenzuela
vs CA)
It is believed that it can also be reasonably
argued that the same conclusion that was
reached by the Court can be reached if it was
a man who was in the position of the actor in
Valenzuela. A man is not necessarily as brave
as the Court may presume him to be. On the
other hand, many women may find the
conclusion of the Court as too patronizing.
They may find it insulting to be treated in such
a stereotypical manner.
Dean Calabresi believes that there should be
uniform standard.
STANDARD vs SPECIFIC RULES
Standards are the legal norms that are being
followed in deciding negligence cases. Courts
apply a standard in the light of the
circumstances obtaining in the particular case
they are deciding. The courts do not prescribe
specific rules of conduct to be followed by all
persons.
OTHER FACTORS TO CONSIDER IN
DETERMINING NEGLIGENCE
1. Violation of rules and statutes
2. Practice and custom
3. Compliance with rules and statutes
DEGREES OF NEGLIGENCE
Not recognized in some jurisdictions. The word
“gross” is of no significance.
In Philippines, the presence of GROSS
NEGLIGENCE is statutorily recognized. Art.
2231 of the Civil Code provides that “(i)n
quasidelicts exemplary damages may be
granted if the defendant acted with gross
negligence.”
Gross negligence is defined in this jurisdiction
as negligence where there is failure to exercise
even slight care and diligence.
PROOF OF NEGLIGENCE
1. Burden of proof - duty of the party to present
evidence on the facts in issue necessary to
establish claim or defense by the amount of
evidence required by law.
However, there are instances when the law
provides presumption of negligence.
2. Presumptions
Driver is negligent - when he is found guilty of
reckless driving or violating traffic regulations
at least twice within the next preceding 2
months (Art. 2184-2185)
Presumption of negligence may also be
present in contracts. Example: passenger was
injured in an accident involving his carrier.
RES IPSA LOQUITUR
It means “the thing speaks for itself.” It creates
a rebuttable presumption that the defendant
was negligent.
Its function is to aid the plaintiff in proving the
elements of a negligence case by
circumstantial evidence.
Res ipsa loquitur. The thing speaks for itself
Rebuttable presumption or inference that
defendant was negligent, which arises upon
proof that instrumentality causing injury was in
defendant's exclusive control, and that the
accident was one which ordinarily does not
happen in absence of negligence. Res ipsa
loquitur is rule of evidence whereby negligence
of alleged wrongdoer may be inferred from
mere fact that accident happened provided
character of accident and circumstances
attending it lead reasonably to belief that in
absence of negligence it would not have
occurred and that thing which caused injury is
shown to have been under management and
control of alleged wrongdoer.
CULPA CONTRACTUAL
The doctrine of res ipsa loquitur generally finds
relevance whether or not a contractual
relationship exists between the plaintiff and the
defendant, for the inference of negligence
arises from the circumstances and nature of
the occurrence and not from the nature of the
relation of the parties.
PROXIMATE CAUSE
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.
REMOTE CAUSE
That cause which some independent force
merely took advantage of to accomplish
something not the natural effect thereof.
It is an independent force that may have
contributed to the happening of something.
NEAREST CAUSES
It means the immediate cause before the
incident or event took place.
CONCURRENT CAUSES
Other causes in the unbroken sequence other
than proximate cause.
IMPUTED CONTRIBUTORY NEGLIGENCE
Negligence is imputed if the actor is different
from the person who is being made liable. As
applied to contributory negligence, the
defendant will be subject to mitigated liability
even if the plaintiff was not himself personally
negligent but because the negligence of
another is imputed to the plaintiff.

FORTUITOUS EVENT

Under Article 1174 of the New Civil Code, a

person is not liable if the cause of damage was
fortuitous; an event which could not be
foreseen, or which though foreseen, was
inevitable.

ASSUMPTION OF RISK

Requisites:

1. The plaintiff must know that the risk is

present
2. He must further understand its nature
3. His choice to incur it is free and voluntary.

PRESCRIPTION

Prescriptive period for quasi-delict is 4 years

counted from date of accident.

MEMORIZE:

Article 2176. Whoever by act or omission

causes damage to another, there being fault or
negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no
pre-existing contractual relation between the
parties, is called a quasi-delict and is governed
by the provisions of this Chapter. (1902a)

Article 2179. When the plaintiff's own

negligence was the immediate and proximate
cause of his injury, he cannot recover
damages. But if his negligence was only
contributory, the immediate and proximate
cause of the injury being the defendant's lack
of due care, the plaintiff may recover damages,
but the courts shall mitigate the damages to be
awarded. (n)