TORTS – Degrees Of Negligence

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

Cases:

Marinduque Iron Mines Agents VS Workmen’s Compensation GR NO. L-8110 June 30, 1956

Facts: On August 23, 1951, the deceased Pedro Mamador, together with other laborers of Marinduque
Iron Mines Agents, boarded a truck belonging to the company, and on their way to the mine camp, the
driver Procopio Macunat, also employed by the company, tried to overtake another truck on the
company road, the truck turned over and hit a coconut tree resulting to the death of Mamador and
injury to others. Macunat was prosecuted, convicted and sentenced to indemnify the heirs of the
deceased. However, he has paid nothing.

MIMA denied its liability under the Workmen’s Compensation Act. It maintains that the claim is barred
by Sec. 6 of the Workmen’s Compensation Act because (a) Macunat was prosecuted and required to
indemnify the heirs of the deceased and (b) an amicable settlement was concluded between said heirs
and Macunat.

“Sec. 6.  Liability of third parties. — In case an employee suffers an injury for which compensation is due
under this Act by any other person besides his employer, it shall be optional with such injured employee
either to claim compensation from his employer, under this Act, or sue such other person for damages,
in accordance with law; chan roblesvirtualawlibraryand in case compensation is claimed and allowed in
accordance with this Act, the employer who paid such compensation or was found liable to pay the
same, shall succeed the injured employee to the right of recovering from such person what he
paid:chanroblesvirtuallawlibrary Provided, That in case the employer recovers from such third person
damages in excess of those paid or allowed under this Act, such excess shall be delivered to the injured
employee or any other person entitled thereto, after deduction of the expenses of the employer and the
costs of the proceedings. The sum paid by the employer for compensation or the amount of
compensation to which the employee or his dependents are entitled, shall not be admissible as evidence
in any damage suit or action.”

(NO for both. Criminal Prosecution does not include recovery of damages so MIMA cannot escape
liability. On the amicable settlement, the heirs only forego criminal prosecution)

MIMA also claims that the deceased’s having violated the employer’s prohibition against laborers riding
the haulage trucks, deemed notorious negligence which precludes the heirs from recovery.

Issue: Whether or not there is notorious negligence on the part of the deceased

Held: There is no doubt that mere riding on haulage truck or stealing a ride thereon is not negligence,
ordinarily. It couldn’t be, because transportation by truck is not dangerous per se. It is argued that there
was notorious negligence in this particular instance because there was the employer’s prohibition. Does
violation of this order constitute negligence? Many courts hold that violation of a statute or ordinance
constitutes negligence per se. Others consider the circumstances. However, there is practical unanimity
in the proposition that violation of a rule promulgated by a Commission or board is not negligence per
se; ybut it may be evidence of negligence.
This order of the employer (prohibition rather) couldn’t be of a greater obligation than the rule of a
Commission or board. And the referee correctly considered this violation as possible evidence of
negligence; rarybut it declared that under the circumstance, the laborer could not be declared to have
acted with negligence. Correctly, it is believed, since the prohibition had nothing to do with personal
safety of the riders. Nevertheless, even granting there was negligence, it surely was not “notorious”
negligence, which we have interpreted to mean the same thing as “gross” negligence 3 — implying
“conscious indifference to consequences” “pursuing a course of conduct which would naturally and
probably result in injury” “utter disregard of consequences.” (38 Am. Jur., 691) Getting or accepting a
free ride on the company’s haulage truck couldn’t be gross negligence, because as the referee found,
“no danger or risk was apparent.”
TORTS – Proof Of Negligence

Burden Of Proof – Rule 131 Rules Of Court

Burden of Proof and Presumptions

Section 1. Burden of proof. — 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. (1a, 2a)

Section 2. Conclusive presumptions. — The following are instances of conclusive presumptions:

(a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to
another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising
out of such declaration, act or omission, be permitted to falsify it:

(b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the
relation of landlord and tenant between them. (3a)

Section 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted,

(a) That a person is innocent of crime or wrong;

(b) That an unlawful act was done with an unlawful intent;

(c) That a person intends the ordinary consequences of his voluntary act;

(d) That a person takes ordinary care of his concerns;

(e) That evidence willfully suppressed would be adverse if produced;

(f) That money paid by one to another was due to the latter;

(g) That a thing delivered by one to another belonged to the latter;

(h) That an obligation delivered up to the debtor has been paid;

(i) That prior rents or installments had been paid when a receipt for the later one is produced;

(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker
and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of
ownership over, are owned by him;

(k) That a person in possession of an order on himself for the payment of the money, or the delivery of
anything, has paid the money or delivered the thing accordingly;

(l) That a person acting in a public office was regularly appointed or elected to it;

(m) That official duty has been regularly performed;

(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a case were laid before the court and passed upon by it;
and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid
before the arbitrators and passed upon by them;

(p) That private transactions have been fair and regular;

(q) That the ordinary course of business has been followed;

(r) That there was a sufficient consideration for a contract;

(s) That a negotiable instrument was given or indorsed for a sufficient consideration;

(t) That an endorsement of negotiable instrument was made before the instrument was overdue and at
the place where the instrument is dated;

(u) That a writing is truly dated;

(v) That a letter duly directed and mailed was received in the regular course of the mail;

(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is
considered dead for all purposes, except for those of succession.

The absentee shall not be considered dead for the purpose of opening his succession till after an
absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall
be sufficient in order that his succession may be opened.

The following shall be considered dead for all purposes including the division of the estate among the
heirs:

(1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been
heard of for four years since the loss of the vessel or aircraft;

(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four
years;

(3) A person who has been in danger of death under other circumstances and whose existence has not
been known for four years;

(4) If a married person has been absent for four consecutive years, the spouse present may contract a
subsequent marriage if he or she has well-founded belief that the absent spouse is already death. In
case of disappearance, where there is a danger of death the circumstances hereinabove provided, an
absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage.
However, in any case, before marrying again, the spouse present must institute a summary proceedings
as provided in the Family Code and in the rules for declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent spouse.

(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or
fact;

(y) That things have happened according to the ordinary course of nature and ordinary nature habits of
life;
(z) That persons acting as copartners have entered into a contract of copartneship;

(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful
contract of marriage;

(bb) That property acquired by a man and a woman who are capacitated to marry each other and who
live exclusively with each other as husband and wife without the benefit of marriage or under void
marriage, has been obtained by their joint efforts, work or industry.

(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other
and who have acquire properly through their actual joint contribution of money, property or industry,
such contributions and their corresponding shares including joint deposits of money and evidences of
credit are equal.

(dd) That if the marriage is terminated and the mother contracted another marriage within three
hundred days after such termination of the former marriage, these rules shall govern in the absence of
proof to the contrary:

(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is
considered to have been conceived during such marriage, even though it be born within the three
hundred days after the termination of the former marriage.

(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is
considered to have been conceived during such marriage, even though it be born within the three
hundred days after the termination of the former marriage.

(ee) That a thing once proved to exist continues as long as is usual with things of the nature;

(ff) That the law has been obeyed;

(gg) That a printed or published book, purporting to be printed or published by public authority, was so
printed or published;

(hh) That a printed or published book, purporting contain reports of cases adjudged in tribunals of the
country where the book is published, contains correct reports of such cases;

(ii) That a trustee or other person whose duty it was to convey real property to a particular person has
actually conveyed it to him when such presumption is necessary to perfect the title of such person or his
successor in interest;

(jj) That except for purposes of succession, when two persons perish in the same calamity, such as
wreck, battle, or conflagration, and it is not shown who died first, and there are no particular
circumstances from which it can be inferred, the survivorship is determined from the probabilities
resulting from the strength and the age of the sexes, according to the following rules:

1. If both were under the age of fifteen years, the older is deemed to have survived;

2. If both were above the age sixty, the younger is deemed to have survived;

3. If one is under fifteen and the other above sixty, the former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived,
if the sex be the same, the older;

5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have
survived.

(kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as
to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in
the absence of proof, they shall be considered to have died at the same time. (5a)

Section 4. No presumption of legitimacy or illegitimacy. — There is no presumption of legitimacy of a

TORTS – Proof Of Negligence

Presumption

Article 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who
was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. It is disputably
presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic
regulations at least twice within the next preceding two months.

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

Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle
has been negligent if at the time of the mishap, he was violating any traffic regulation. (n)

Article 2188. There is prima facie presumption of negligence on the part of the defendant if the death or
injury results from his possession of dangerous weapons or substances, such as firearms and poison,
except when the possession or use thereof is indispensable in his occupation or business. (n)

Article 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods,
unless the same is due to any of the following causes only:

(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;

(2) Act of the public enemy in war, whether international or civil;

(3) Act or omission of the shipper or owner of the goods;

(4) The character of the goods or defects in the packing or in the containers;

(5) Order or act of competent public authority.

Article 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4, and 5 of the preceding article, if
the goods are lost, destroyed or deteriorated, common carriers are presumed to have been at fault or to
have acted negligently, unless they prove that they observed extraordinary diligence as required in
article 1733.
TORTS – Proof Of Negligence – Res Ipsa Loquitur

Cases:

Pedro Layugan VS IAC, Godofredo Isidro and Travellers Multi-Identitiy Corp. GR No. 73998 Nov 14,
1988

Facts: Pedro Layugan filed an action for damages against Godofredo Isidro, alleging that Layugan and a
companion were repairing the tire of their cargo truck along the National Highway, that Isidro’s truck
driven by Daniel Serrano bumped Layugan, and as a result, he was injured and hospitalized. That he
spent 10,000 and will incur more expenses as he recuperated from injuries and that he be deprived of a
lifetime income because of said injuries in the sum of 70,000 and that he agreed to pay his lawyer
10,000.

In his answer, Isidro admitted ownership to the vehicle involved in the accident. He countered that
Layugan was merely a bystander, being the brother-in-law of the driver, and that the proximate cause of
the incident was the failure of the driver of the parked truck in installing the early warning device, hence
the driver of the parked car should be liable for damages sustained by the truck of the herein defendant
in the amount of more than P20,000.00; that plaintiff being a mere bystander and hitchhiker must suffer
all the damages he incurred. Isidro also filed a third-party complaint against his insurer, Travellers Multi-
Identitiy Corp.

Third party answered that even assuming that the subject matter of the complaint is covered by a valid
and existing insurance policy, its liability shall in no case exceed the limit defined under the terms and
conditions stated therein; that the accident in question was approximately caused by the carelessness
and gross negligence of the plaintiff.

The trial court rendered a decision in favor of the plaintiff. IAC reversed the decision, dismissing the
complaint and the third party complaint, finding the plaintiff negligent under the doctrine res ipsa
loquitur.

Issue: WON the IAC acted correctly in applying the doctrine “res ipsa loquitur”

Held: NO. Respondent Isidro claims that any immobile object along the highway, like a parked truck,
poses serious danger to a moving vehicle which has the right to be on the highway. He argues that since
the parked cargo truck in this case was a threat to life and limb and property, it was incumbent upon the
driver as well as the petitioner, who claims to be a helper of the truck driver, to exercise extreme care so
that the motorist negotiating the road would be properly forewarned of the peril of a parked vehicle.
Absent such proof of care, as in the case at bar, Isidro concludes, would, under the doctrine of Res ipsa
loquitur, evoke the presumption of negligence on the part of the driver of the parked cargo truck as well
as his helper, the petitioner herein, who was fixing the flat tire of the said truck.

Respondent Isidro's contention is untenable.

The evidence on record discloses that three or four meters from the rear of the parked truck, a lighted
kerosene lamp was placed. It is clear from the foregoing disquisition that the absence or want of care of
Daniel Serrano has been established by clear and convincing evidence. It follows that in stamping its
imprimatur upon the invocation by respondent Isidro of the doctrine of Res ipsa loquitur to escape
liability for the negligence of his employee, the respondent court committed reversible error.
The doctrine Res ipsa loquitur: "Where the thing which causes injury is shown to be under the
management of the defendant, and the accident is such as in the ordinary course of things does not
happen if those who have the management use proper care, it affords reasonable evidence, in the
absence of an explanation by the defendant, that the accident arose from want of care.”

The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof and furnishes a
substitute for specific proof of negligence. The doctrine is not a rule of substantive law but merely a
mode of proof or a mere procedural convenience. The rule, when applicable to the facts and
circumstances of a particular case, is not intended to and does not dispense with the requirement of
proof of culpable negligence on the part of the party charged. It merely determines and regulates what
shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the
duty of due care. The doctrine can be invoked when and only when, under the circumstances involved,
direct evidence is absent and not readily available. Hence, it has generally been held that the
presumption of inference arising from the doctrine cannot be availed of, or is overcome, where plaintiff
has knowledge and testifies or presents evidence as to the specific act of negligence which is the cause
of the injury complained of or where there is direct evidence as to the precise cause of the accident and
all the facts and circumstances attendant on the occurrence clearly appear. Finally, once the actual
cause of injury is established beyond controversy, whether by the plaintiff or by the defendant, no
presumptions will be involved and the doctrine becomes inapplicable when the circumstances have
been so completely eludicated that no inference of defendant's liability can reasonably be made,
whatever the source of the evidence, as in this case.
Rogelio and Erlinda Ramos VS CA

FACTS: Plaintiff Erlinda Ramos was experiencing occasional pains allegedly caused by stones in her gall
bladder. She was told to undergo an operation and after some tests and exams, she was indicated fit for
surgery.

Dr. Orlino Hozaka, defendant, decided that Erlinda should undergo a “cholecystectomy” operation.
Rogelio, husband of Erlinda, asked Dr. Hosaka to look for a good anesthesiologist.

Around 7:30 AM of June 17, 1985, Herminda (sister-in-law of Erlinda) accompanied Erlinda to the
operating room and saw Dr. Gutierrez, the other defendant, who was to administer anesthesia. Dr.
Hosaka only arrived around 12:15 PM, three hours late. Nonetheless, the operation continued and
Herminda then saw Dr. Gutierrez intubating the patient and heard her saying “and hirap ma-intubate
nito, mali yata ang pagkakapasok”. Thereafter, bluish discoloration of the nailbeds appeared on the
patient. Hence, Dr. Hosaka issued an order for someone to call Dr. Calderon, another anesthesiologist.
The patient was placed in a trendelenburg position for decrease of blood supply in her brain. At 3:00
PM, the patient was taken to the ICU.

Four months after, the patient was released from the hospital. However, the patient has been in a
comatose condition.

Hence, the petition filed a civil case for damages against herein private respondents alleging negligence
in the management and care of Erlinda Ramos.

Petitioners contended that the faulty management of her airway casused the lack of oxygen in the
patient’s brain. On the respondent’s part, they contended that the brain damage was Erlinda's allergic
reaction to the anesthetic agent.

ISSUES: (1) Will the doctrine of res ipsa loquitur apply in this case? and (2) Did the negligence of the
respondents cause the unfortunate comatose condition of petitioner Erlinda Ramos?

RULING: (1) Yes. The Court finds the doctrine of res ipsa loquitur appropriate in the case at bar.

The doctrine of res ipsa loquitur is where the thing which caused the injury complained of is shown to be
under the management of the defendant or his servants and the accident is such as in ordinary course of
things does not happen if those who have its management or control use proper care, it affords
reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or
was caused by the defendant's want of care.

In cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent
upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its
fund of common knowledge can determine the proper standard of care.

Erlinda submitted herself soundly and fit for surgery. However, during the administration of anesthesia
and prior to the performance of cholecystectomy she suffered irreparable damage to her brain. Thus,
without undergoing surgery, she went out of the operating room already decerebrate and totally
incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury which does not normally
occur in the process of a gall bladder operation.
Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while
the patient is unconscious and under the immediate and exclusive control of the physicians, we hold
that a practical administration of justice dictates the application of res ipsa loquitur.

(2a) With regard to Dra. Gutierrez, the court find her negligent during the anesthesia phase. As borne by
the records, respondent Dra. Gutierrez failed to properly intubate the patient which she admitted.

During intubation, such distention indicates that air has entered the gastrointestinal tract through the
esophagus instead of the lungs through the trachea. Entry into the esophagus would certainly cause
some delay in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong place.

Even granting that the tube was successfully inserted during the second attempt, it was obviously too
late.

An experienced anesthesiologist, adequately alerted by a thorough pre-operative evaluation, would

Hence, she was negligent.

(2b) For Dr. Orlino Hosaka, as the head of the surgical team and as the so-called captain of the ship, it is
the surgeons responsibility to see to it that those under him perform their task in the proper manner

Respondent Dr. Hosakas negligence can be found in his failure to exercise the proper authority (as the
captain of the operative team) in not determining if his anesthesiologist observed proper anesthesia
protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not escape the court
that respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time as
Erlinda's operation, and was in fact over three hours late for the latter's operation. Because of this, he
had little or no time to confer with his anesthesiologist regarding the anesthesia delivery. This indicates
that he was remiss in his professional duties towards his patient.

Thus, he shares equal responsibility for the events which resulted in Erlindas condition.

(2c) As for the hospital (employer) itself, the Court ruled that for the purpose of allocating responsibility
in medical negligence cases, an employer-employee relationship in effect exists between hospitals and
their attending and visiting physicians.

In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family
in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar
nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article
2180.

Having failed to do this, respondent hospital is consequently solidarily responsible with its physicians for
Erlindas condition.
Dr. Victoria and Allan Batiquin VS CA GR No. 118231 July 5, 1996

Facts: Dr. Batiquin was a resident physician at Negros Oriental Provincial Hospital. Mrs. Flotilde Villegas
is a married woman who submitted to Dr. Batiquin for prenatal care as the latter’s private patient
sometime before September 21, 1988.

On September 21, 1988, Dr. Batiquin, with the assistance of Dr. Sy, a nurse and other student nurses
performed a simple cesarean section on Mrs. Villegas and after 45 minutes Mrs. Villegas delivered her
first child, Rachel Acogido. Thereafter, Plaintiff remained confined at the Hospital until September 27,
during which Dr. Batiquin regularly visited her. Soon after leaving the hospital, Mrs. Villegas began to
suffer abdominal pains and complained of being feverish. She consulted Dr. Batiquin who prescribed
certain medicines.

Meanwhile, Dr. Batiquin issued to Mrs. Villegas a Medical Certificate, certifying to her physical fitness to
return to her work. So Mrs. Villegas returned to work. But the abdominal pain and fever kept recurring,
so she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital.

Dr. Kho found that Mrs. Villegas has ovarian cyst a piece of rubber was found near Mrs. Villegas uterus.
The piece of rubber allegedly found near private respondent Flotilde Villegas' uterus was not presented
in court, and although Dr. Ma. Salud Kho testified that she sent it to a pathologist in Cebu City for
examination,  it was not mentioned in the pathologist's Surgical Pathology Report.

Trial court ruled in favor of petitioners. CA reversed the decision finding that Dr. Kho’s testimony to
definitely establish that a piece of rubber was found near private respondent Villegas' uterus.

Issue: WON Dr. Batiquin is liable

Held: Yes. Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony
[that a piece of rubber was indeed found in private respondent Villegas' abdomen] prevails over the
negative testimony in favor of the petitioners.

As such, the rule of res ipsa loquitur comes to fore.

This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown to be
under the management of the defendant, and the accident is such as in the ordinary course of things
does not happen if those who have the management use proper care, it affords reasonable evidence, in
the absence of an explanation by the defendant, that the accident arose from want of care."

The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof and furnishes a
substitute for specific proof of negligence. The doctrine is not a rule of substantive law, but merely a
mode of proof or a mere procedural convenience. The rule, when applicable to the facts and
circumstances of a particular case, is not intended to and does not dispense with the requirement of
proof of culpable negligence on the party charged. It merely determines and regulates what shall
be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of
due care. The doctrine can be invoked when and only when, under the circumstances involved, direct
evidence is absent and not readily available.
In the instant case, all the requisites for recourse to the doctrine are present. First, the entire
proceedings of the cesarean section were under the exclusive control of Dr. Batiquin. In this light, the
private respondents were bereft of direct evidence as to the actual culprit or the exact cause of the
foreign object finding its way into private respondent Villegas' body, which, needless to say, does not
occur unless through the intervention of negligence. Second, since aside from the cesarean section,
private respondent Villegas underwent no other operation which could have caused the offending piece
of rubber to appear in her uterus, it stands to reason that such could only have been a by-product of the
cesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the
presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is
therefore liable for negligently leaving behind a piece of rubber in private respondent Villegas' abdomen
and for all the adverse effects thereof.
DM Consunji VS CA GR NO. 137873 April 20, 2001

Facts: Jose Juego, a construction worker of DM Consunji, fell 14 floors from the Renaissance Tower,
Pasig City, to his death. In the police investigation, it was found that Juego, together with other laborers
were performing their work as carpenters on board a platform made of channel beam(steel) when
suddenly, the bolt or pin which was merely inserted to connect the chain block with the platform got
loose. Victim fall down to the basement and the Tower D of the building under construction crushed the
victim.

Jose Juego’s widow, Maria, filed in the RTC a complaint for damages against DM Consunji. Dm Consunji
raised, among other defenses, the widow’s prior availment of the benefits from the State Insurance
Fund.

The trial court rendered a decision in favor of Maria. CA reversed.

Issue: WON CA erred in holding that the doctrine of res ipsa loquitur is applicable to prove negligence of
petitioner.

Held: Petitioner’s contention that the testimony of the investigator is a mere opinion loses relevance in
the face of the application of res ipsa loquitur by the CA. The effect of the doctrine is to warrant a
presumption or inference that the mere fall of the elevator was a result of the person having charge of
the instrumentality was negligent. As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to
the law of negligence which recognizes that prima facie negligence may be established without direct
proof and furnishes a substitute for specific proof of negligence.

The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or
injury will not generally give rise to an inference or presumption that it was due to negligence on
defendant’s part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction
speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for itself, the facts or
circumstances accompanying an injury may be such as to raise a presumption, or at least permit an
inference of negligence on the part of the defendant, or some other person who is charged with
negligence.

x x x where it is shown that the thing or instrumentality which caused the injury complained of was
under the control or management of the defendant, and that the occurrence resulting in the injury was
such as in the ordinary course of things would not happen if those who had its control or management
used proper care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the
absence of explanation by the defendant, that the injury arose from or was caused by the defendant’s
want of care.

One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent or
not available. The res ipsa loquitur doctrine is based in part upon the theory that the defendant in
charge of the instrumentality which causes the injury either knows the cause of the accident or has the
best opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is
compelled to allege negligence in general terms and to rely upon the proof of the happening of the
accident in order to establish negligence. The inference which the doctrine permits is grounded upon
the fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible
to the defendant but inaccessible to the injured person.

It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without
knowledge of the cause, reaches over to defendant who knows or should know the cause, for any
explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains.
The res ipsa loquitur doctrine, another court has said, is a rule of necessity, in that it proceeds on the
theory that under the peculiar circumstances in which the doctrine is applicable, it is within the power of
the defendant to show that there was no negligence on his part, and direct proof of defendant’s
negligence is beyond plaintiff’s power. Accordingly, some court add to the three prerequisites for the
application of the res ipsa loquitur doctrine the further requirement that for the res ipsa loquitur
doctrine to apply, it must appear that the injured party had no knowledge or means of knowledge as to
the cause of the accident, or that the party to be charged with negligence has superior knowledge or
opportunity for explanation of the accident

The CA held that all the requisites of res ipsa loquitur are present in the case at bar:

There is no dispute that appellee’s husband fell down from the 14th floor of a building to the basement
while he was working with appellant’s construction project, resulting to his death. The construction site
is within the exclusive control and management of appellant. It has a safety engineer, a project
superintendent, a carpenter leadman and others who are in complete control of the situation therein.
The circumstances of any accident that would occur therein are peculiarly within the knowledge of the
appellant or its employees. On the other hand, the appellee is not in a position to know what caused the
accident. Res ipsa loquitur is a rule of necessity and it applies where evidence is absent or not readily
available, provided the following requisites are present: (1) the accident was of a kind which does not
ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury
was under the exclusive control of the person charged with negligence; and (3) the injury suffered must
not have been due to any voluntary action or contribution on the part of the person injured. x x x.

No worker is going to fall from the 14th floor of a building to the basement while performing work in a
construction site unless someone is negligent[;] thus, the first requisite for the application of the rule
of res ipsa loquitur is present. As explained earlier, the construction site with all its paraphernalia and
human resources that likely caused the injury is under the exclusive control and management of
appellant[;] thus[,] the second requisite is also present. No contributory negligence was attributed to the
appellee’s deceased husband[;] thus[,] the last requisite is also present. All the requisites for the
application of the rule of res ipsa loquitur are present, thus a reasonable presumption or inference of
appellant’s negligence arises. x x x.24

Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was negligent did not arise since it "proved that it
exercised due care to avoid the accident which befell respondent’s husband."

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendant’s negligence is presumed or inferred25 when the plaintiff establishes the requisites for the
application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements, the
burden then shifts to defendant to explain.26 The presumption or inference may be rebutted or
overcome by other evidence and, under appropriate circumstances disputable presumption, such as
that of due care or innocence, may outweigh the inference.27 It is not for the defendant to explain or
prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of
say, due care, comes into play only after the circumstances for the application of the doctrine has been
established.1âwphi1.nêt

In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the
police investigator as evidence of its due care. According to Fabro’s sworn statement, the company
enacted rules and regulations for the safety and security of its workers. Moreover, the leadman and
the bodegero inspect the chain block before allowing its use.

It is ironic that petitioner relies on Fabro’s sworn statement as proof of its due care but, in arguing that
private respondent failed to prove negligence on the part of petitioner’s employees, also assails the
same statement for being hearsay.

Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible. Affidavits are inadmissible as
evidence under the hearsay rule, unless the affiant is placed on the witness stand to testify
thereon.28 The inadmissibility of this sort of evidence is based not only on the lack of opportunity on
the part of the adverse party to cross-examine the affiant, but also on the commonly known fact that,
generally, an affidavit is not prepared by the affiant himself but by another who uses his own language
in writing the affiant’s statements which may either be omitted or misunderstood by the one writing
them.29 Petitioner, therefore, cannot use said statement as proof of its due care any more than private
respondent can use it to prove the cause of her husband’s death. Regrettably, petitioner does not cite
any other evidence to rebut the inference or presumption of negligence arising from the application
of res ipsa loquitur, or to establish any defense relating to the incident.
TORTS – Defenses – Plaintiff’s Negligence

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)

Cases:

Manila Electric VS Sotero Remoquillo GR No L-8328 May 18, 1956

Facts: Efren Magno went to his stepbrother’s 3-story house, Antonio Penaloza, to fix a leaking “media
agua” (downsprout). He climbed up to the media agua which was just below the 3rd floor window and
stood on it to receive a galvanized iron sheet through the said window. After grabbing hold of the sheet,
he turned around and a portion of the iron sheet he was holding came into contact with an electric wire
of Manila Electric Company, which was 2 ½ feet from it, electrocuting him and killing him. Regulations of
the City of Manila required that ‘all wires be kept three feet from the building.’

His widow and children filed an action for recovery of damages against Manila Electric. The trial court
rendered a judgment in favor of the widow. CA affirmed finding that it was the company that was at
fault and was guilty of negligence because although the electric wire in question had been installed long
before the construction of the house and in accordance with the ordinance fixing a minimum of 3 feet,
mere compliance with the regulations does not satisfy the requirement of due diligence nor avoid the
need for adopting such other precautionary measures as may be warranted; chan
roblesvirtualawlibrarythat negligence cannot be determined by a simple matter of inches; chan
roblesvirtualawlibrarythat all that the city did was to prescribe certain minimum conditions and that just
because the ordinance required that primary electric wires should be not less than 3 feet from any
house, the obligation of due diligence is not fulfilled by placing such wires at a distance of 3 feet and one
inch, regardless of other factors.

Issue: WON The company’s negligence in the installation and maintenance of its wires was the
proximate cause

Held: No. After a careful study and discussion of the case and the circumstances surrounding the same,
we are inclined to agree to the contention of Petitioner Company that the death of Magno was primarily
caused by his own negligence and in some measure by the too close proximity of the “media agua” or
rather its edge to the electric wire of the company by reason of the violation of the original permit given
by the city and the subsequent approval of said illegal construction of the “media agua”. We fail to see
how the Company could be held guilty of negligence or as lacking in due diligence. Although the city
ordinance called for a distance of 3 feet of its wires from any building, there was actually a distance of 7
feet and 2 3/4 inches of the wires from the side of the house of Peñaloza.

But even assuming for a moment that under the facts of the present case the Defendant electric
company could be considered negligent in installing its electric wires so close to the house and “media
agua” in question, and in failing to properly insulate those wires, such supposed negligence of the
company must have been the proximate and principal cause of the accident, because if the act of
Magno in turning around and swinging the galvanized iron sheet with his hands was the proximate and
principal cause of the electrocution, then his heirs may not recover. 
To us it is clear that the principal and proximate cause of the electrocution was not the electric wire,
evidently a remote cause, but rather the reckless and negligent act of Magno in turning around and
swinging the galvanized iron sheet without taking any precaution, such as looking back toward the street
and at the wire to avoid its contacting said iron sheet, considering the latter’s length of 6 feet.

Bernardo VS Legaspi 29 Phil 12 December 23, 1914

Facts: Due to a collision between the respective automobiles of Juan Bernardo and MB Legaspi,
Bernardo filed an action to recover damages for damages sustained by his car, which he alleged by
reason of Legaspi’s negligence in causing the collision.

Legaspi, on the other hand, filed a cross-complaint, alleging it was Bernardo’s fault and also asks for
damages.

The CFI found that both the plaintiff and the defendant were negligent in handling their automobiles
and that said negligence was of such a character and extent on the part of both as to prevent either
from recovering. 

Issue: WON parties may recover damages

Held: No. NEGLIGENCE; AUTOMOBILES; COLLISION TROUGH MUTUAL NEGLIGENCE. — Where two
automobiles, going in opposite directions, collide on turning a street corner, and it appears from the
evidence and is found by the trial court that the drivers thereof were equally negligent and contributed
equally to the principal occurrence as determining causes thereof, neither can recover of the other for
the damages suffered.
Tomas Bernal and Fortunata Enverso VS JV House and Tacloban Electric and Ice Plant LTD GR NO. L-
30741 Jan 30, 1930

Facts: On the evening of April 10, 1925,  the procession of Holy Friday was held in Tacloban, Leyte.
Fortunata Enverso with her daughter Purificacion Bernal came from another municipality to attend the
religious celebration. After the procession was over, the woman and her daughter, accompanied by two
other persons, passed along a public street named Gran Capitan. The little girl was allowed to get a short
distance in advance of her mother and her friends.

When in front of the offices of the Tacloban Electric & Ice Plant, Ltd., and automobile appeared from the
opposite direction which so frightened the child that she turned to run, with the result that she fell into
the street gutter. At that time there was hot water in this gutter or ditch coming from the Electric Ice
Plant of J.V. House.

When the mother and her companions reached the child, they found her face downward in the hot
water. The girl was taken to the provincial hospital, where she died the same night.

Dr. Benitez, the attending physician, certified that the cause of death was 3rd degree burns on the
whole body and that the contributory causes were "Congestion of the Brain and visceras of the chest &
abdomen".

Respondents defense was that the hot water was permitted to flow down the side of the street Gran
Captain with the knowledge and consent of the authorities; that the cause of death was other than the
hot water; and that in the death the plaintiffs contributed by their own fault and negligence.

The trial judge, however, after examination of the evidence presented by the defendants, failed to
sustain their theory of the case, except as to the last mentioned special defense. He nevertheless was
led to order the dismissal of the action because of the contributory negligence of the plaintiffs.

Issue: WON respondents is absolved of liability because of the contributory negligence of the plaintiff.

Held: No. The contributory negligence of the child and her mother, if any, does not operate as a bar to
recovery, but in its strictest sense could only result in reduction of the damages. The mother and her
child had a perfect right to be on the principal street of Tacloban, Leyte, on the evening when the
religious procession was held. There was nothing abnormal in allowing the child to run along a few paces
in advance of the mother. No one could foresee the coincidence of an automobile appearing and of a
frightened child running and falling into a ditch filled with hot water. 

The death of the child Purificacion Bernal was the result of fault and negligence in permitting hot water
to flow through the public streets, there to endanger the lives of passers-by who were unfortunately
enough to fall into it.
PLDT VS CA and Spouses Esteban GR NO. L-57079 Sep 29, 1989

Facts: Spouses Esteban filed an action for damages against PLDT for the injuries they sustained in the
evening of July 30, 1968 when their jeep ran over a mound and fell into an open trench, an excavation
allegedly undertaken by PLDT for the installation of its underground conduit system. The complaint
alleged that respondent Antonio Esteban failed to notice the open trench which was left uncovered
because of the creeping darkness and the lack of any warning light or signs. As a result of the accident,
respondent Gloria Esteban allegedly sustained injuries on her arms, legs and face, leaving a permanent
scar on her cheek, while the respondent husband suffered cut lips. In addition, the windshield of the
jeep was shattered.

PLDT argues that the injuries sustained by respondent spouses were the result of their own negligence
and that the entity which should be held responsible, if at all, is L.R. Barte and Company (Barte, for
short), an independent contractor which undertook the construction of the manhole and the conduit
system. Accordingly, PLDT filed a third-party complaint against Barte. In answer thereto, Barte claimed
that it was not aware nor was it notified of the accident involving respondent spouses and that it had
complied with the terms of its contract with PLDT by installing the necessary and appropriate standard
signs in the vicinity of the work site, with barricades at both ends of the excavation and with red lights at
night along the excavated area to warn the traveling public of the presence of excavations.

The trial court rendered a decision in favor of the spouses. CA reversed the decision, finding that
Esteban spouses were negligent and consequently absolved petitioner PLDT from the claim for damages.

Issue: WON PLDT is liable for damages

Held: No. It was found that the jeep was  running quite fast on the inside lane and for some reason or
other it had to swerve suddenly to the right and had to climb over the ACCIDENT MOUND. The accident
which befell the spouses was due to the lack of diligence of Antonio, and was not imputable to the
negligent omission on the part of PLDT.  Antonio had not exercised the diligence of a good father of a
family to avoid the accident. With the drizzle, he should not have run on dim lights, but should have put
on his regular lights which should have made him see the accident mound in time. The mound
was relatively big and visible, being 2-3 ft high and 1-1/2 ft wide. Also, he knew of the existence and
location of the mound, having seen it many previous times. 

          The negligence of Antonio was not only contributory to his and his wife’s injuries but goes to
thevery cause of the occurrence of the accident, as one of its determining factors, and therebyprecludes
their right to recover damages. The perils of the road were known to the spouses. By exercising
reasonable care and prudence, Antonio could have avoided the injurious consequences of his act, even
assuming arguendo that there was some alleged negligence on the part of PLDT.

          The omission to perform a duty, such as the placing of warning signs on the site of the
excavation, constitutes the proximate cause only when the doing of the said omitted act would have
prevented the injury. As a resident of Lacson Street, he passed on that street almost everyday and had
knowledge of the presence and location of the excavations there; hence, the presence of warning signs
could not have completely prevented the accident. Furthermore, Antonio had the last clear chance to
avoid the accident, notwithstanding the negligence he imputes to PLDT. 
          A person claiming damages for the negligence of another has the burden of proving the existence
of such fault or negligence causative thereof, otherwise, his action must fail. The facts constitutive of
negligence must be affirmatively established by competent evidence. In this case, there was insufficient
evidence to prove any negligence on the part of PLDT. What was presented was just the self-serving
testimony of Antonio and the unverified photograph of a portion of the scene of the accident. The
absence of a police report and the non-submission of a medical report from the hospital where the
spouses were allegedly treated have not even been explained.
TORTS – Defenses – Contributory Negligence

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)

Cases:

Gregorio Genobiagon VS CA GR No. L-40452 October 12, 1989

Facts: On December 31, 1959, a rig driven by Genobiagon bumped an old woman who was crossing T.
Padilla St., at the right side of T. Padilla Market. The rig was going so fast not only because the road was
a steep-down but also because Genobiagon tried to overtake another ahead of him. When Genobiagon
bumped the old woman, he tried to drive on, but a bystander, Vicente Mangyao, saw the incident and
shouted to the appellant to stop. Victim was brought to the hospital where she died 3 hours later.

Petitioner was charged with homicide through reckless imprudence. The trial court found him guilty. On
appeal, CA affirmed but increased his civil liability.

Issue: WON CA erred in not holding that the reckless negligence of the victim was the proximate cause
of the accident.

Held: No. The alleged contributory negligence of the victim, if any, does not exonerate the accused. "The
defense of contributory negligence does not apply in criminal cases committed through reckless
imprudence, since one cannot allege the negligence of another to evade the effects of his own
negligence (People vs. Orbeta, CA-G.R. No. 321, March 29,1947)." (People vs. Quinones, 44 O.G. 1520).
M.H. Rakes VS The Atlantic, Gulf and Pacific Company GR No. 1719 January 23, 1907

Facts: Rakes, one of a gang of eight negro laborers employed by the defendant company, was at work
transporting iron rails from a barge to the company’s yard.  The rails were being transported on two-
hand cars immediately following one another. The rails lay upon two cross pieces or sills secured to the
cars but without side pieced or guars to prevent them from slipping off. According to the testimony of
the plaintiff, the men were either in the rear of the car or at its sides. According to that defendant, some
of them were also in front, hauling by a rope. At a certain spot at or near the water's edge the track
sagged, the tie broke, the car either canted or upset, the rails slid off and caught the plaintiff, breaking
his leg, which was afterwards amputated at about the knee. The sagging of the track and the breaking of
the tie, which was the immediate occasion of the accident, was due to the dislodging of the crosspiece
or piling under the stringer by the water of the bay raised by a recent typhoon. It appeared that a day
before the accident the attention of the defendant’s foreman was called by one of the laborers to the
defect in the track but the same was not repaired.

The plaintiff sought for damages against the defendant alleging theat the accident happened through
the negligence of the defendant.

The courts found defendant liable; that implied by the relation between the parties, the employer is
bound to provide safe appliances for the use of the employee’ that it was the duty of the defendant to
build and maintain its track in reasonably sound condition, so as to protect its workingmen from
unnecessary danger; that defendant failed in its duty, otherwise the accident could not have occurred
and consequently, the negligence of the defendant is established.

Issue: WON plaintiff committed contributory negligence on grounds that he noticed the depression in
the track but continued his work, and he walked on the ends of the ties at the sides of the car instead of
along the boards.

Held: The Court ruled in favor of plaintiff, but deducted from the award the amount fairly attributable to
his negligence.

While a few of the American States have adopted to a greater or less extent the doctrine of comparative
negligence, allowing a recovery by a plaintiff whose own act contributed to his injury, provided his
negligence was slight as compared with that of the defendant, and some others have accepted the
theory of proportional damages, reducing the award to a plaintiff in proportion to his responsibility for
the accident, yet the overwhelming weight of adjudication establishes the principle in American
jurisprudence that any negligence, however slight, on the part of the person injured which is one of the
causes proximately contributing to his injury, bars his recovery.

Distinction must be between the accident and the injury, between the event itself, without which there
could have been no accident, and those acts of the victim not entering into it, independent of it, but
contributing under review was the displacement of the crosspiece or the failure to replace it. this
produced the event giving occasion for damages — that is, the shinking of the track and the sliding of
the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute,
although it was an element of the damage which came to himself. Had the crosspiece been out of place
wholly or partly thorough his act of omission of duty, the last would have been one of the determining
causes of the event or accident, for which he would have been responsible. Where he contributes to the
principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction with
the occurrence, he contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own
imprudence.
Philippine Bank Of Commerce VS CA

Facts: Private respondent Rommel’s Marketing Corporation maintained 2 separate current accounts
with PBC. Romeo Lipana, the President and General Manager of RMC, claims to have entrusted RMC
funds in cash amounting to P304,979.74 to his secretary, Irene Yabut, for the purpose of depositing said
funds in the current accounts of RMC with PBC. It turned out, however, that these deposits, on all
occasions, were not credited to RMC's account but were instead deposited to Account No. 53-01734-7
of Yabut's husband, Bienvenido Cotas who likewise maintains an account with the same bank. During
this period, petitioner bank had, however, been regularly furnishing private respondent with monthly
statements showing its current accounts balances. Unfortunately, it had never been the practice of
Romeo Lipana to check these monthly statements of account reposing complete trust and confidence on
petitioner bank.

Irene Yabut’s modus operandi wherein she would accomplish two (2) copies of the deposit slip, an
original and a duplicate. The original showed the name of her husband as depositor and his current
account number. On the duplicate copy was written the account number of her husband but the name
of the account holder was left blank. PBC's teller, Azucena Mabayad, would, however, validate and
stamp both the original and the duplicate of these deposit slips retaining only the original copy despite
the lack of information on the duplicate slip. The second copy was kept by Irene Yabut allegedly for
record purposes. After validation, Yabut would then fill up the name of RMC in the space left blank in
the duplicate copy and change the account number written thereon, which is that of her husband's, and
make it appear to be RMC's account number. This went on in a span of more than one (1) year without
private respondent's knowledge.

Upon discovery of the loss of its funds, RMC demanded from petitioner bank the return of its money,
but as its demand went unheeded, it filed a collection suit.

The trial court found petitioner bank negligent. CA affirmed.

Issue: What is the proximate cause of the loss - Lipana’s negligence in not checking his monthly
statements or the bank’s negligence through its teller in validating the deposit slips?

Held: The bank teller was negligent in validating, officially stamping and signing all the deposit slips
prepared and presented by Yabut, despite the glaring fact that the duplicate copy was not completely
accomplished contrary to the self-imposed procedure of the bank with respect to the proper validation
of deposit slips, original or duplicate.

The bank teller’s negligence, as well as the negligence of the bank in the selection and supervision of its
bank teller, is the proximate cause of the loss suffered by the private respondent, not the latter’s
entrusting cash to a dishonest employee. Xxx Even if Yabut had the fraudulent intention to
misappropriate the funds, she would not have been able to deposit those funds in her husband’s current
account, and then make plaintiff believe that it was in the latter’s accounts wherein she had deposited
them, had it not been for the bank teller’s aforesaid gross and reckless negligence.

The foregoing notwithstanding, it cannot be denied that, indeed, private respondent was likewise
negligent in not checking its monthly statements of account. Had it done so, the company would have
been alerted to the series of frauds being committed against RMC by its secretary. The damage would
definitely not have ballooned to such an amount if only RMC, particularly Romeo Lipana, had exercised
even a little vigilance in their financial affairs. This omission by RMC amounts to contributory negligence
which shall mitigate the damages that may be awarded to the private respondent.

Doctrine of Last Clear Chance – where both parties are negligent, but the negligent act of one is
appreciably later in time than that of the other, or when it is impossible to determine whose fault or
negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the
impending harm and failed to do so is chargeable with the consequences thereof. It means that the
antecedent negligence of a person does not preclude the recovery of damages for the supervening
negligence of, or bar a defense against liability sought by another, if the latter, who had the last fair
chance, could have avoided the impending harm by exercise of due diligence. (Phil. Bank of Commerce
v. CA, supra)