TORTS & DAMAGES
Atty. Ukol
Atty. Aquino Book
DEGREES OF NEGLIGENCE
In the Philippines the presence of g ross neg lig ence is PROOF OF NEGLIGENCE
statutorily recog nized. Burd en of Proof
Art 2231CC - Section 1, Rule 131 of the Revised Rules of Court
- in quasi-delicts exemplary damages may be granted if burden of proof is the duty of a party to present
the defendant acted with gross negligence. evidence on the facts in issue necessary to establish
It is very difficult, if not impossible, to draw a line between his claim or defenses by the amount of evidence
ordinary neg lig ence and g ross neg lig ence. Courts are required by law.
compelled to rule on the existence of g ross neg lig ence - It is up to the plaintiff to establish his cause of action or
Gross Neg lig ence the defendant to establish his defense
- Neg lig ence where there is want of even slig ht care and - Evid ence
dilig ence The presence of neg lig ence may be established by
- Neg lig ence characterized by the want of even slig ht testimonial, d ocumentary or real evid ence that are
care, acting or omitting to act in a situation where there deemed acceptable under the Rules of Court
is duty to act, not inadvertently but willfully and provisions on evidence.
intentionally, with a conscious indifference to Testimonies of persons who witnessed the incident
consequences insofar as other persons may be affected. may support the alleg ations of the plaintiff that
- Characterized as implying conscious indifference to there was neg lig ence on the part of the defendant
consequences; pursuing a course of conduct which Expert witness may be relied upon to prove
would naturally and probably result to injury; utter neg lig ence.
disreg ard of consequences In medical malpractice cases: testimony of
Similar to Reckless Imp rud ence expert is indispensable in many cases
- Some leg al writers believe g ross neg lig ence is similar to However, the importance of the testimony of an
reckless imprudence under Art 365 RPC. expert witness is not limited to medical
- People v Vistan malpractice
The weig ht of authority will be found to support the Use is not limited to cases where alleg ed
proposition that where immediate personal harm, tortfeasor is an expert
preventable in the exercise of reasonable care, is
threatened to a human being by reason of a course Presump tion
of conduct being pursued by another, and the ART It is disputably presumed that a driver was neg lig ent, if he had
2184 been found g uilty of reckless driving or violating traffic reg ulations
dang er is visible and consciously appreciated by
at least twice within the next preceding two months
the actor, the failure to use reasonable care to ART Unless there is proof to the contrary, it is presumed that a person
prevent threatened injury constitutes reckless 2185 driving a motor vehicle has been neg lig ent if at the time of the
neg lig ence. mishap, he was violating any traffic reg ulation
ART There is prima facie presumption of neg lig ence on the part of the
- Simple imprudence is a mere lack of prevision in a
2188 defendant if the death or injury results from his possession of
situation where either the threatened harm is not dang erous weapons or substances, such as firearms and poison,
immediate or the dang er is not openly visible. except when the possession or use thereof is indispensable in his
occupation or business.
CAT.VKN
1
TORTS & DAMAGES
Atty. Ukol
Atty. Aquino Book
j.Violating MMDA ordinance prohibiting vehicle
- Facts that must b e estab lished coming from a particular street from crossing
Party invoking a presumption must still establish another specified street
certain factual preconditions before the Courts take cog nizance of the Law of the Road in
presumption can operate. establishing neg lig ence.
Art 2185 requires proof that there was a violation of Law of the Road is the custom or practice that has
a traffic violation while Art 2188 requires proof of become crystallized into an accepted system of
possession of dang erous weapons or substances, rules reg ulating travel on hig hways.
such as firearms and poison
- Contractual Relationship
- Traffic Rules and Law of the Road Presumption of neg lig ence may also rise because of
Traffic reg ulations under 2184 and 2185 include certain contractual relationship between parties.
violation of specific provisions of Land Transportation CC provides for a presumption of neg lig ence in
and Traffic Code and other traffic laws and case a passeng er was injured in an accident
ordinances. involving his carrier.
Neg lig ence on the person violating the law shall be ART Common carriers are responsible for the loss,
1734 destruction, or deterioration of the g oods, unless the
presumed:
same is due to any of the following causes only:
a. Violation of Sec 37 requiring motorist to drive on i. Flood, storm, earthquake, lig htning , or other natural
the rig ht side of the road and providing rules on disaster or calamity;
overtaking ii. Act of the public enemy in war, whether
international or civil;
b. Speeding in violation of law providing for
iii. Act of omission of the shipper or owner of the
restriction on speed g oods;
c. Speeding in an intersection iv. The character of the g oods or defects in the
d. A vehicle’s failure to sig nal while making a u- packing or in the containers;
v. Order or act of competent public authority.
turn
ART In all cases other than those mentioned in Nos. 1, 2, 3, 4,
e. Driver escaped and abandoned victims and his 1735 and 5 of the preceding article, if the g oods are lost,
truck destroyed or deteriorated, common carriers are
f. Driving without the license or driving alone with presumed to have been at fault or to have acted
neg lig ently, unless they prove that they observed
only a student’s license.
extraordinary dilig ence as required in Article 1733.
g . Motorcycle driver was not wearing a protective
headg ear at time of accident - Art 2185 d oes not ap p ly to non-motorized vehicles
h. Overtaking in a “no-overtaking zone” where Presumption under Art 2185 applies only to the
there are 2 continuous yellow lines at the center person driving a motor vehicle at time of mishap. It
of the hig hway which is part of internationally does not apply to non-motorized vehicle, like a
recog nized pavement reg ulation known as bicycle.
double yellow center lines reg ulation The standards applicable to motor vehicle are not
i. Overtaking in an intersection on equal footing with other types of vehicles.
(A nonuevo v CA )
CAT.VKN
2
TORTS & DAMAGES
Atty. Ukol
Atty. Aquino Book
Mere invocation of the doctrine does not dispense
Res Ip sa Loq uitur with the requirement of proof of neg lig ence.
- The thing speaks for itself It simply is a step in the process of such proof,
- Its function is to aid the plaintiff in proving the elements permitting the plaintiff to present along with the
of neg lig ence case by circumstantial evidence. proof of the accident, enoug h of the attending
- “where the thing which causes injury is shown to be circumstances to invoke the doctrine and place on
under the manag ement of the defendant, and the the defendant the burden of g oing forward with
accident is such as in the ordinary course of thing s does proof.
not happen if those who have the manag ement use
proper care, it affords reasonable evidence in the - Rationale
absence of an explanation by the defendant, that Res ipsa loquitur is simply a recog nition of the
accident arose from want of care.” (Layugan v IA C) postulate that as a matter of common knowledg e
and experience, the very nature of certain types of
- Req uisites occurences may justify an inference of neg lig ence
Rog elio v CA on the part of the person who controls the
a. Accident is of a kind which ordinarily does not instrumentality causing the injury in the absence of
occur in the absence of someone’s neg lig ence some explanation by the defendant who is charg ed
b. It is caused by an instrumentality within the with neg lig ence.
exclusive control of the defendant or Grounded on the superior log ic or ordinary human
defendants and experience and on the basis of such experience or
c. The possibility of contributing conduct which common knowledg e, neg lig ence may be deduced
would make the plaintiff responsible is eliminated from mere occurrence of accident itself
Control of the Instrumentality which caused the Res ipsa loquitur is applied in conjunction with the
damag e is a fundamental element. doctrine of common knowledg e.
Such element of control must be shown to be
within the dominion of the defendant - When ap p lied
Plaintiff must show a situation where it is In Batiq uin v CA, the SC applied the doctrine to a
applicable and must establish that the essential doctor who performed a simple caesarian section
elements of the doctrine were present in a on the plaintiff.
particular accident. It appears after leaving the hospital, the plaintiff
suffered abdominal pains, complained of being
- As evid entiary rule feverish and lost her appetite. She consulted the
Res Ipsa Loquitur is considered merely as evidentiary doctor who g ave her medicines.
or in the nature of a procedural rule. It is reg arded When pains became unbearable, she went to
as a mode of proof of a mere procedural another doctor who found that plaintiff had
convenience since it furnishes a substitute for and infections in her uterus and ovaries. When
relieves plaintiff of burden of producing specific operated on, a piece of rubber was found on
proof of neg lig ence.
CAT.VKN
3
TORTS & DAMAGES
Atty. Ukol
Atty. Aquino Book
the rig ht side of her uterus which could have No contributory neg lig ence was attributed to
been a torn section of a surg eon’s g love. deceased husband, last requisite also present.
SC ruled that all requisites for res ipsa loquitur
are present: - When not ap p lied
1. Entire proceeding s of a caesarian section In Layug an v IAC, the court did not warrant the
were under exclusive control of Dr. Batiquin. application of the doctrine.
Plaintiffs were bereft of direct evidence as Plaintiff and companion were repairing the tire
to actual culprit. of their carg o truck which was parked along the
2. Asice form caesarian section, plaintiff rig ht side of the hig hway.
underwent no other operation which could Defendant’s truck, driven recklessly by Serrano
have caused the rubber to appear in the bumped the plaintiff, as a result, plaintiff was
uterus. injured and hospitalized.
The defendants failed to overcome the During the trial, it was established that an early
presumption of res ipsa loquitur. warning device in the form of a lig hten
In DM Consuji v CA, the doctrine was applicable kerosene lamp was placed by plaintiff at the
where private respondent’s husband fell down from back of his truck.
the 14th floor of a building to the basement while Defendant posited that the burden of proving
working on petitioner’s construction project resulting that care and dilig ence was observed is shifter
to his death. to plaintiff for while the immobile carg o had no
Construction site was within exclusive control business to be there. The absence of such proof
and manag ement of petitioner. of care under the doctrine of res ipsa loquitur
It has a safety eng ineer, a project evoke presumption of neg lig ence on part of the
superintendent, a carpenter leadman and driver of the parked truck.
other who were in complete control of the SC: doctrine was inapplicable because there
situation. The circumstances of any accident was sufficient proof that the plaintiff exercised
that would occur were peculiarly within the due care by sufficiently placing an early
knowledg e of petitioner or its employees. warning device. But despite this warning , the
The widow was not in a position to know what isuzu truck still bumped the rear of the parked
caused the accident. carg o truck.
No worker is g oing to fall from the 14th floor while
performing working unless someone is neg lig ent,
thus the first requisite for application of res ipsa DEFENSES
loquitur was present. Plaintiff’s Neg lig ence
The construction site with all its paraphernalia ART When the plaintiff's own neg lig ence was the immediate and
and human resources likely caused the injury 2179 proximate cause of his injury, he cannot recover damag es. But if
his neg lig ence was only contributory, the immediate and
under the exclusive control and manag ement proximate cause of the injury being the defendant's lack of due
of appellant, thus second requisite was also care, the plaintiff may recover damag es, but the courts shall
present. mitig ate the damag es to be awarded.
CAT.VKN
4
TORTS & DAMAGES
Atty. Ukol
Atty. Aquino Book
SC: finding s clearly show that the neg lig ence of
Esteban was not only contributory to his injuries
and those of his wife but g oes to the very cause
- Plaintiff’s own neg lig ence as the p roximate cause
of the occurrence of the accident, as one of its
In Taylor v Manila Electric Railroad and Lig ht Co
determining factors and thereby precludes their
The Partidas contain the following provisions:
rig ht to recover damag es.
The just thing is that a man should suffer the
The perils of the road were known to the
damag e which comes to him throug h his
respondents. By exercising reasonable care and
own fault, and that he cannot demand
prudence, Esteban could have avoided the
reparation from another
injurious consequences of his act, even
And they even said that when a man
assuming there was some alleg ed neg lig ence
received an injury throug h his own
on the part of the petitioner.
neg lig ence he should blame himself for it.
The presence of warning sig ns could not have
While there does not appear to be anything in
completely prevented the accident, the only
CC which expressly lays down the law touching
purpose of the sig ns was to inform and warn the
contributory neg lig ence in this jurisdiction, the
public of the presence of excavations on the
interpretation placed upon its provisions by SC
site.
of Spain, and by this court in the case of Rakes v
Respondents knew of the excavations. It is basic
Atlantic Gulf and Pacific Co, clearly deny to
that private respondents cannot charg e PLDT
that plaintiff in the case at bar the rig ht to
for their injuries where their own failure to
recover damag es from the defendant in whole
exercise due and reasonable care was the only
or in part for injuries sustained by him.
cause thereof. Esteban had the last clear
PLDT v CA
chance opportunity to avoid the accident.
An action for damag es was instituted by private
He passed on the street everyday and had
respondent spouses ag ainst PLDT for injuries they
knowledg e of the presence and location of the
sustained when their jeep ran over a mound of
excavations. It was his neg lig ence that exposed
earth and fell into an open trench, an
him and his wife to dang er.
excavation alleg edly undertaken by PLDT for
the installation of its underg round conduit
Contrib utory Neg lig ence
system.
- Art 2179 is clear that if the plaintiff’s neg lig ence is merely
The trial court rendered a decision in favor of
contributory, the plaintiff is not barred from recovering
spouses.
from the defendant.
CA reversed the decision of lower court and
- This statutory rule is reiterated in Art 2214 that states that:
dismissed the complaint. Holding that
In quasi-delicts, the contributory neg lig ence of the
respondent spouses were neg lig ent on and that
plaintiff shall reduce the damag es that he may
there was insufficient evidence to prove any
recover
neg lig ence on the part of PLDT
- Comp arative Neg lig ence Rule
CAT.VKN
5
TORTS & DAMAGES
Atty. Ukol
Atty. Aquino Book
Comparative neg lig ence rules include any rule entering into it, independent of it, but
under which the relative deg ree of neg lig ence of contributing to his own proper hurt.
parties is considered in determining whether and to The cause of the accident under review was
what deg ree either should be responsible for his the displacement of the crosspiece or the
neg lig ence. failure to replace it. This produced the event
Includes apportionment of damag es. g iving occasion for damag es—that is sinking of
Pure type of comparative neg lig ence, the plaintiff’s the track and the sliding of iron rails.
contributory neg lig ence does not operate to bar his The act of plaintiff in walking by the side of the
recovery altog ether but does serve to reduce his care did not contribute, althoug h it was an
damag e in proportion to his fault. element of the damag e which came to himself.
At time CC was enacted, the prevailing rule was the Had the crosspiece been out of lace wholly or
doctrine of contributory neg lig ence. As of 1991, the partly throug h this act or omission of duty, that
prevailing rule was already the d octrine of would have been the determining causes of the
comp arative neg lig ence event or accident for which he would have
Under common law, doctrine of contributory been responsible.
neg lig ence, the neg lig ence of defendant, which Where he contributes to the principal
contributes to his injury, completely bars recover. occurrence, as one of its determining factors,
Doctrine of comparative neg lig ence does not he cannot recover.
completely bar recovery but merely mitig ates the Where, he contributes only to his own injury, he
same. may recover amount that defendant
responsible for the event should pay for such
- Contrib utory Neg lig ence Mitig ates Liab ility injury, less a sum deemed suitable equivalent for
Contributory neg lig ence of plaintiff merely results in his own imprudence.
mitig ation of liability.
Contributory neg lig ence is defined as a conduct on - Extent of Mitig ation
the part of the injured party, contributing as a leg al Court is free to determine the extent of the
cause to the harm he has suffered, which falls below mitig ation of defendant’s liability depending on the
the standard to which he is required to conform for circumstances.
his own protection. Jurisprudence shows that the SC had sustained
Rakes v Atlantic Gulf and Pacific Co various percentag es of mitig ation: 50%, 40%, 20%
Difficulty seems to be apprehended in deciding
which acts of the injured party shall be - Test of Neg lig ence
considered immediate causes of the accident. Whether the act or omission in question is that of the
The test is simple. Distinction must be made defendant or the contributory neg lig ence of the
between the accident and the injury, between plaintiff.
the event itself without there could have been The test is still foreseeab ility: “There is contributory
no accident, and those acts of victim not negligence when the party’s act showed lack of
CAT.VKN
6
TORTS & DAMAGES
Atty. Ukol
Atty. Aquino Book
ordinary care and foresight that such act could servant, the latter’s neg lig ence is imputed to his
cause him harm or put his life in danger.” superior and will defeat superior’s claim ag ainst the
Contributory neg lig ence has been repeatedly third person if the neg lig ence is the proximate
defined as “conduct on the part of the injured cause.
party, contributing as a leg al cause to the hard he
has suffered, which falls below the standard to
which he is required to conform for his own
protection”
No contributory neg lig ence can be imputed to the
victim who was bumped by a car while he was
standing in the should of the hig hway that is meant
of pedestrian use. The victim could not have
foreseen that the car, without so much as slowing
down, took off from the cemented part of the
hig hway, inexplicably swerved to the should and
recklessly bumped the victim. Running vehicles are
not supposed to pass the shoulder.
- Imp uted Contrib utory Neg lig ence
Neg lig ence is imputed if the actor is different from
the person who is being made liable.
As applied to contributory neg lig ence, the
defendant will be subject to mitig ated liability even
if the plaintiff was not himself personally neg lig ent
but because the neg lig ence of another is imputed
to the plaintiff.
This rule is applicable where neg lig ence was on the
part of the person for whom the plaintiff is
responsible and by neg lig ence of an associate in
the transaction where he was injured.
- Imp uted Neg lig ence to Plaintiff as Proximate Cause
In other cases, the imputed neg lig ence is not only
merely contributory but may be the proximate
cause of the loss.
Ramos v COL Realty Corp oration, SC observed that
if the master is injured by the neg lig ence of a third
person and by concurring neg lig ence of his own
CAT.VKN
7
