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TORTS ANDDAMAGESTi moteo B. A qui noTORTS AND DAMAGES b y TI MOTEO B. AQUI NOCHAPTER 1GENERAL CONSIDERATIONSTORT Latin: ―torquere‖, ―torqueo‖ – to twist or turn An unlawful violation of private right, not created by contract, and which gives rise to an action for damages An act or omission producing...

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TORTS AND DAMAGES Ti moteo B . A qui no

CHAPTER 1 GENERAL CONSIDERATIONS

POLICY SHALL COMPENSATE THE LATTER FOR THE DAMAGE. 2.

TORT -

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Latin: ―torquere‖, ―torqueo‖ – to twist or turn An unlawful violation of private right, not created by contract, and which gives rise to an action for damages An act or omission producing an injury to another, without any previous existing lawful relation of which the said act or omission may be said to be a natural outgrowth or incident (Robles v. Castillo) A private or civil wrong or injury, other than breach of contract for which the court will provide a remedy in the form of an action for damages A violation of a duty imposed by general law or otherwise upon all persons occupying the relation to each other that is involved in a given transaction A violation of some duty that must arise by operation of law and not by mere agreement of the parties A legal wrong committed upon person or property independent of contract A breach of legal duty A violation of a right given or omission of statutory duty imposed by law (Naguiat v. NLRC)

Expanded Scope of Quasi-Delict

ART. 1902. Any person who by act or omission causes damage to another by his fault or negligence shall be liable for the damage so done. ART. 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 QUASIDELICT and is governed by the provisions of this Chapter. Purposes of Tort Law Major Purposes 1. To provide a peaceful means for adjusting the rights of parties who might otherwise take the law into their own hands 2. To deter wrongful conduct 3. To encourage socially responsible behavior 4. To restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury 5. To reduce the risks and burden of living in the society and to allocate them among the members of society

Kinds of Tort Liabilities INTENTIONAL TORTS Include conduct where the actor desires to cause the consequences of his act or believe the consequences are substantially certain to result from it EX: assault, battery, false imprisonment, defamation, invasion of privacy, interference of property

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NEGLIGENCE Involves voluntary acts or omissions that result in injury to others without intending to cause the same Failure to exercise due care in performing such acts or omissions

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STRICT LIABILITY Involves conduct where the person is made liable independent of fault or negligence upon submission of proof of certain facts The conduct is generally not wrongful in itself but the wrong consists in causing harm by engaging in certain types of risky activities EX: Art. 2187 of NCC, Art. 100 of Consumer Act

Scope and Applicable Laws of Philippine Tort Law 1.

Catch All Provisions

Balancing of Conflicting Interests Interests Protected Torts/Provisions Involved Person Freedom from contact Physical Injuries (Art. 32) Quasi-Delict (Art. 2176) Freedom from distress Moral Damages (Art. 2217-2220) Dignity Reputation Privacy Freedom from actions

wrongful

Property Real Property

Economic/Pecuniary Contracts Freedom from Deception

Defamation (Art. 33) Violation of Privacy (Art. 26) Malicious Prosecution (Art. 20-21)

Nuisance (Art. 694-770) Quasi-Delict (Art. 2176)

Interference with contractual rights (Art. 1314) Fraud (Art. 33)

Specific Purposes 1. To protect consumers 2. To make sure that desired expertise is maintained

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.

Fundamental Principles

ART. 20. EVERY PERSON WHO, CONTRARY TO LAW, WILFULLY OR NEGLIGENTLY CAUSES DAMAGE TO ANOTHER, SHALL INDEMNIFY THE LATTER FOR THE SAME.

Justice The giving to each man what is proper to him A steady and unceasing disposition to render every man his due

ART. 21. ANY PERSON WHO WILLFULLY CAUSES LOSS OR INJURY TO ANOTHER IN A MANNER THAT IS CONTARY TO MORALS, GOOD CUSTOMS, OR PUBLIC

A. EQUITY and JUSTICE  Chapter on Human Relations in NCC

Concepts of Justice 1. Social level a. Distributive Justice b. Retributive Justice

TORTS AND DAMAGES b y TI MOTEO B AQUI NO

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Individual level a. Corrective Justice - The primary concern of TORT LAW and NCC provisions on damages b. Commutative Justice

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Persons who can sue and be sued for tort a.

Equity Justice according to natural law or right Justice outside legality b. B.  

DEMOCRACY Art. 32, NCC To implement civil liberties guaranteed by the Constitution

C. HUMAN PERSONALITY EXALTED  Art. 26, NCC Justifications of Tort Liability 1.

Moral Perspective

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Art. 19 and 20 – redress to all moral wrongs Ubi jus ubi remedium. (There is not wrong without a remedy.) FOCUS: the wrong committed and the moral shortcoming of the actor

Natural Law HUGO GROTIUS There is a higher law revealed through reason. By nature, an act of one does not and in fact cannot create a debt to another other than that of material equality. Indemnification means to restore the amount that one deprived another and it is through this that one becomes a creditor in natural right. Fault creates an obligation to make good the loss. Three sources of what is owed us: o Agreement o Wrong o Statute WRONG: every fault, whether of commission or of omission, which is in conflict with what men ought to do, either generally or by reason of special quality. From such fault, if the damage has been caused, an obligation arises naturally, namely, that it should be made good. Every good law draws its breath of life from morals, from those principles which are written in the conscience of man. Corrective Justice JULES COLEMAN o A loss falls within the ambit of corrective justice only if it is wrongful o WRONGDOING: unjustifiable departures from the relevant standards of permissible behavior or wrongs o WRONGS: invasion of rights Imposes the obligation to compensate the victim of harm 2. -

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Social Perspective Liability may be provided for certain tortuous conduct because of the good that it will do to the society as a whole and its function of encouraging socially responsible behavior. Public policy requires that some interests not be invaded too far in the advancement of other interests. Economic Perspective Tort law allocates the costs of accidents to those in the best position to minimize these costs.

Tort law encourages people to allocate resources to accident prevention.

PLAINTIFFS Persons who are entitled to damages Natural / Artificial person NOTE: Arts. 40 and 41 of NCC DEFENDANTS Persons who may be held liable for damages Natural / Artificial person NOTE: vicarious liability / doctrine of corporate responsibility a. Close Corporation Stockholders liable (Sec. 100, Corporation Code) b. Corporation by Estoppel Members who make it appear/represent themselves to be members of a corporation in dealing with third persons liable as GENERAL PARTNERS for all debts, liabilities, and damages (Sec. 21, Corporation Code) Lack of corporate personality NOT a defense c. Partnerships Art. 1823 – 1824 of NCC Partnership is solidarily liable with the partners if conduct is in pursuit of business MUTUAL AGENCY rule d. State Art. 2180 and 2189 of NCC NOTE: State immunity from suits and exceptions thereto

Remedies 1. Preventive 2. Compensatory 3. Restitution  

Every remedy in a certain sense is preventive because it threatens certain undesirable consequences to those who violate the rights of others. PRIMARY purpose of tort action: to provide compensation to a person who was injured by the tortious conduct of the defendant o ACTION FOR DAMAGES o INJUNCTION o RESTRAINING ORDER

Alternative Compensation Schemes In tort cases, the plaintiff can recover damages that are proximately causes by the negligent or willful act of the defendant. 1. Insurance  Insurance Code o Chapter V – CMVI Any claim not exceeding P5000.00 for death or injury to any passenger or third party shall be paid without the necessity of proving fault or negligence of any kind. 2. Workers’ Compensation  Art. 166 of the Labor Code o Promote and develop a tax-exempt employee’s compensation program…  Art. 167 – 208 of the Labor Code o Simplify the process for recovery

TORTS AND DAMAGES b y TI MOTEO B AQUI NO

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Actionable negligence: 1. Culpa contractual (CONTRACT) 2. Culpa aquiliana (QUASI-DELICT) 3. Criminal negligence (DELICT) Statutory Basis and Requisites: Art. 1157 – 5 sources of obligations: 1. Law 2. Contracts 3. Quasi-Contracts 4. Delict 5. Quasi-Delict QUASI DELICT NCC. – ART. 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 preexisting contractual relation between the parties, is called QUASI-DELICT and is governed by the provisions of this Chapter. Requisites: 1. There must be an act or omission constituting fault or negligence. 2. Damage caused by the said act or omission. 3. Causal relation between the damage and the act or omission 

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Absence of contract is NOT a requisite. o A liability for tort may arise even under a contract, where tort is that which breaches the contract. o When an act which constitutes a breach of contract would have itself constituted the source of a quasidelictual liability, the contract can be said to have been breached by tort, thereby allowing the rules on tort to apply. (American Express Int’l. v. Cordero) Duty need not be alleged and proved. o NOTE: Art. 2195 – 2235 of NCC o DUTY: underlying general duty of care Part of negligence issue o BREACH: the negligent act or omission o INJURY: damage suffered by the plaintiff o PROXIMATE CAUSE

RECKLESS IMPRUDENCE consists in voluntary, but without malice, doing or failing to do an act which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time, and place. SIMPLE IMPRUDENCE consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest. Elements: 1. The offender does/fails to do an act; 2. The doing/failure to do that act is voluntary; 3. It is without malice; 4. The material damage results from the reckless imprudence; and 5. There is inexcusable lack of precaution on the part of the offender taking into consideration his~ a. Employment/occupation b. Degree of intelligence c. Physical condition d. Other circumstances regarding~ i. Persons ii. Time; and iii. Place CONTRACT  ART. 1170 – 1174 of NCC  NOT tort actions Culpa Aquiliana (Quasi-Delict)

Legal Basis of Liability

There can be a quasi-delict as long as there is fault or negligence resulting in damage or injury to another.

Nature of Negligence

Direct, substantive, and independent

DELICT Criminal Intent

Not necessary. Fault/Negligenc e will suffice. Preponderance of evidence

RPC. – ART. 365. IMPRUDENCE AND NEGLIGENCE. – Any person who, by RECKLESS IMPRUDENCE, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of ARRESTO MAYOR in its maximum period to prision correccional in its maximum period; if it would have constituted a less grave felony, the penalty of ARRESTO MAYOR in its minimum period shall be imposed.

Existence of Pre-Existing Contractual Obligation

NONE

Any person who, by SIMPLE IMPRUDENCE OR NEGLIGENCE, shall commit an act which would otherwise constitute a grave felony shall suffer the penalty of ARRESTO MAYOR in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of ARRESTO MAYOR in its minimum period shall be imposed.

Defense of “Good Father of the Family” (DOAGFOAF)

A complete and proper defense insofar as parents, guardians, employees are concerned

Proof Needed

Culpa Contractual (Contract) The obligation arises from the breach of contract because of defendant’s failure to exercise due care in its performance. Only incidental to the performance of an existing obligation based on a contract Not necessary. Preponderance of evidence Express/implied contractual obligation Not a complete and proper defense in the selection and supervision of employees but can mitigate liability for

Culpa Criminal (Crimes)

There can be no crime unless there is a law clearly punishing the act.

Direct, substantive, and independent Essential for criminal liability to exist. Proof beyond reasonable doubt NONE CANNOT be interposed. If the employee is insolvent, the employer is subsidiarily liable

TORTS AND DAMAGES b y TI MOTEO B AQUI NO

CHAPTER 2 NEGLIGENCE

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Burden of Proof Nature of Right Violated Governing Law

2176 2177 2178 2179

2180

2181 2182 2183 2184 2185 2186 2187

2188

2189

2190

2191 2192 2193 2194

NONE

Injured party

Innocence of accused presumed Complainant b.

Private right Art. 2176 Art. 1172-1174, NCC

Private right Art. 1170-1174, NCC

Two or More Defendants

Public right ART. 2194. The responsibility of two or more persons who are liable for quasi-delict is solidary. Art. 365, RPC

Art. 2176 – 2194 Governing Quasi—Delict Defines quasi-delict and its requisites Civil liability arising from a quasi-delict v. Civil liability arising from delict Art. 1172-1174 are applicable to quasi-delict Effect of plaintiff’s own negligence Defines the responsibility of FATHER or MOTHER; GUARDIANS; OWNERS/MANAGERS of establishments; EMPLOYER; STATE; TEACHERS/HEADS of Establishments of Arts and Trades (FGO-EST) FGO-EST’s reimbursement for what they paid for damages caused by their dependents or employees States the requirements in order that minor or insane properties may be held answerable The possessor or user of animal is liable for the damages it may cause The owner of the motor vehicle is solidarily liable with his driver The driver is presumed negligent if, at the time of the mishap, he was violating any traffic regulation Every owner of the vehicle shall file a bond (CPTL) to answer for damages to a third person Imposes liability to manufacturers and possessors of foodstuffs, drinks, etc. if the death/injury is caused by the noxious substances used by them Prima facie presumption of defendant’s negligence if death/injury results from his possession of dangerous weapons or substances, except when possession or use of the same is indispensable in his occupation or business. Provinces, cities, and municipalities are liable for damages for death or injuries caused to any person because of defective public works under their control and supervision Due to lack of necessary repairs, the owner of the building/structure is responsible for the damages caused by its collapse Proprietor’s other responsibilities on explosion of machinery, excessive smoke, falling trees, and emanation from tubes, etc. Liability of engineer, architect, or contractor if the damage is the result of a defect in the construction Head of the family’s liability for falling objects Solidary liability when there are two or more persons who are joint tortfeasors and they are guilty of only one quasi-delict

Concurrence of Causes of Action a.

Proscription Against Double Recovery ART. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.

One Defendant, Two or More Sources of Obligation

NEGLIGENCE ART. 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. -

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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 (Layugan v. IAC) 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 (Layugan v. IAC) Want of care required by the circumstance (Corliss v. Manila Railroad Company) Conduct which creates an undue risks to others (Valenzuela v. CA)

Test of Negligence 

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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? o Pater familias Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued?

Foreseeability -

The fundamental test of negligence The determination of negligence is a question of foresight on the part of the actor.

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Undue Risk  Negligence is a conduct that creates an undue risk to others.  All actions entail a degree of risk and all conduct under certain circumstances may be a source of damage.  RISK: a danger which is apparent, or should be apparent, to one in the position of the actor; the potential for harm that is present in an act; links the active and passive aspects of injurious conduct

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Probability  If there is a great probability and risk that damage will result, a person is negligent if he did not exercise due diligence in the face of such great probability.  Danger consists in the risk of harm, as well as the likelihoof of it, and a danger calling for anticipation need not be of more probable occurrence than less. If there is some probability of harm sufficiently serious that ordinary men would take precautions to avoid it, then failure to do is negligence.

TORTS AND DAMAGES b y TI MOTEO B AQUI NO

Presumption of Negligence

damages EXISTS, if breach of contract is proven Defendant must prove otherwise

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Negligence is conduct. Motive not material  One may be liable for a practical joke.

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Purely moral fault not covered  Only juridical fault is subject to liability.  RULES OF LAW: limit the range of complainants and the extent of their remedy. Prior conduct  The conduct that should be examined is conduct prior to the injury that resulted or, in proper cases, the aggravation thereof.  ―DILIGENCE BEFORE THE FACT‖: taking of necessary precautions against mischievous results (St. Francis HS v. CA)

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RULE IN THE PH Richard Epstein: A COMMON SENSE, INTUITIVE INTERPRETATION ―balancing interests‖ ―balancing of risk‖: interests are to be balanced only in the sense that the purposes of the actor, the nature of his act, and the harm that may result from action or inaction are elem...