You are on page 1of 16

LAYUGAN V IAC 167 SCRA 363 SARMIENTO; November 14, 1968 NATURE Petition for review on certiorari of IAC

decision FACTS - Plaintiff Pedro Layugan testified that while in Bagabag, Nueva Vizcaya, he and a companion were repairing the tire of their cargo truck which was parked along the right side of the National Highway. Defendant's truck driven recklessly by Daniel Serrano bumped the plaintiff, that as a result, plaintiff was injured and hospitalized. Due to said injuries, his left leg was amputated so he had to use crutches to walk. - Defendant Godofredo Isidro admitted his ownership of the vehicle involved in the accident driven by Daniel Serrano. Defendant said that the plaintiff was merely a bystander, not a truck helper being a brotherin-law law of the driver of said truck; that the truck allegedly being repaired was parked, occupying almost half of the right lane towards Solano, Nueva Vizcaya, right after the curve; that the proximate cause of the incident was the failure of the driver of the parked truck in installing the early warning device, - Daniel Serrano, defendant driver, said that he knew the responsibilities of a driver; that before leaving, he checked the truck. The truck owner used to instruct him to be careful in driving. He bumped the truck being repaired by Pedro Layugan, plaintiff, while the same was at a stop position. From the evidence presented, it has been established clearly that the injuries sustained by the plaintiff was caused by defendant's driver, Daniel Serrano. Serrano also testified that, When I was a few meters away, I saw the truck which was loaded with round logs. I stepped on my foot brakes but it did not function with my many attempts. I have (sic) found out later that the fluid pipe on the rear right was cut that's why the breaks did not function. - Plaintiff points to the negligence of the defendant driver while Isidro points to the driver of parked truck as negligent, and says that absent such proof of care, it 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. ISSUES 1. WON defendant driver Serrano was negligent 2. WON the doctrine of res ipsa loquitur applies in this case HELD 1 NO - (Procedural) Ratio Findings of fact are entitled to great respect and will not ordinarily be disturbed by this Court unless it falls down under the exceptions provided by the Court to merit review of the facts. Reasoning

- This is a question of fact. But this case is an exception since: 1) the finding are grounded entirely on speculation, surmise, or conjecture; 2) the inference made is manifestly mistaken, 3) the judgment is based on misapprehension of facts; 4) CA findings are contrary to those of the trial court; 5) the said findings of fact are conclusions without citation of specific evidence on which they are based; and 6) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted on record. Hence, SC entertained review of the factual question. - (Substantive) Ratio The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. Reasoning [1] Negligence defined. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do [2] Applying the definition and the test, it is clear that the absence or want of care of Daniel Serrano has been established by clear and convincing evidence. Whether cargo truck was parked along the road or on half the shoulder of the road is immaterial taking into account the warning device consisting of the lighted kerosene lamp placed 3-4m from the back of the truck. But despite this warning, the Isuzu truck driven by Serrano, still bumped the rear of the parked cargo truck. As a direct consequence of such accident Layugan sustained injuries on his left forearm and left foot. 2. NO Note that for our purposes this was not raised as an issue in this case. Therefore this only Obiter Dicta. But as far as were concerned and relevant to our discussion in the outline, I formulated it in an issue-type. This is what the Court actually said in the case to prove its just obiter, and its relevant to the main issue on negligence: At this juncture, it may be enlightening and helpful in the proper resolution of the issue of negligence to examine the doctrine of Res ipsa loquitur. Obiter [1] What is the doctrine of Res Ipsa Loquitur? Two ways to put it: (a) This doctrine 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, and (b) According to Blacks Law dictionary, Res ipsa loquitur. The thing speaks for itself Rebuttable presumption or inference that defendant was negligent, which arises upon proof that instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence. Res ipsa loquitur is rule of evidence whereby negligence of alleged

wrongdoer may be inferred from mere fact that accident happened provided character of accident and circumstances attending it lead reasonably to belief that in absence of negligence it would not have occurred and that thing which caused injury is shown to have been under management and control of alleged wrongdoer. [2] In our jurisdiction, and the way we apply it in cases, particularly in the law of negligence: 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 doctrine 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. So, it is inapplicable where plaintiff has knowledge and testifies or presents evidence as to the specific act of negligence which is the cause of the injury, or where theres direct evidence as to the precise cause of the accident and all the facts and circumstances attendant on the occurrence clearly appear. And once the actual cause of injury is established beyond controversy, no presumptions will be involved and the doctrine becomes inapplicable when the circumstances show that no inference of defendant's liability can reasonably be made, whatever the source of the evidence. In this case it is inapplicable because it was established by clear and convincing evidence the negligence of the defendant driver. Disposition Petition GRANTED with costs against private respondents. RAMOS V CA [citation] KAPUNAN; December 29, 1999 NATURE Petition For Certiorari FACTS - In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be made liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy. - Plaintiff Erlinda Ramos was a robust woman except for occasional complaints of discomfort due to pains allegedly caused by the presence of a stone in her gall bladder she was as normal as any other woman. Because the discomforts somehow interfered with her normal ways, she sought professional advice. She was advised to undergo an operation for the removal of a stone in her gall bladdershe underwent a series of examinations which included blood and urine tests which indicated she was fit for surgery. She and her husband Rogelio met for the first time Dr. Orlino Hozaka, one of the defendants in this case, on June 10, 1985. They agreed that their date at the operating table at the De Los Santos

Medical Center, would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she should undergo a cholecystectomy operation after examining the documents presented to him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good anesthesiologist. She was admitted in the hospital and was with her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursing at the Capitol Medical Center, was also there for moral support. After praying, she was given injections. At the operating room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to administer anesthesia. Although not a member of the hospital staff, Herminda introduced herself as Dean of the College of Nursing at the Capitol Medical Center who was to provide moral support to the patient, to them. Herminda was allowed to stay inside the operating room. - Hours later at about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard somebody say that Dr. Hosaka is already here. She then saw people inside the operating room moving, doing this and that, [and] preparing the patient for the operation. As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez say, ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan (id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her attention on what Dr. Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon, another anesthesiologist. After Dr. Calderon arrived at the operating room, she saw this anesthesiologist trying to intubate the patient. The patients nailbed became bluish and the patient was placed in a trendelenburg position. Immediately thereafter, she went out of the operating room, and she told Rogelio E. Ramos that something wrong was x x x happening. Dr. Calderon was then able to intubate the patient. - Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg position. At almost 3:00 P.M. of that fateful day, she saw the patient taken to the Intensive Care Unit (ICU). - Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient. The doctors explained that the patient had bronchospasm. Erlinda Ramos stayed for about four months in the hospital, she incurred hospital bills amounting to P93,542.25. She has been in a comatose condition. After being discharged from the hospital, she has been staying in their residence, still needing constant medical attention, with her husband Rogelio incurring a monthly expense ranging from P8,000.00 to P10,000.00. She was also diagnosed to be suffering from diffuse cerebral parenchymal damage. - Petitioners filed a civil case for damages with the Regional Trial Court of Quezon City against herein private respondents alleging negligence in the management and care of Erlinda Ramos. - During the trial, both parties presented evidence as to the possible

cause of Erlindas injury. Plaintiff presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the damage sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty management of her airway by private respondents during the anesthesia phase. On the other hand, private respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage was Erlindas allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal). - Regional Trial Court rendered judgment in favor of petitioners. Court of Appeals reversed. - The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was mistakenly addressed as Atty. Rogelio Ramos. No copy of the decision, however, was sent nor received by the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration of the reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a motion for extension of time to file a motion for reconsideration. The motion for reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for extension of time in its Resolution dated 25 July 1995. Meanwhile petitioners engaged the services of another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court still denied the motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing a motion for reconsideration had already expired. - A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition for certiorari under Rule 45. The Court granted the motion for extension of time and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of the resolution of the Court of Appeals within which to submit the petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well within the extended period given by the Court. ISSUES 1. WON it should be dismissed for being filed later than allowable 15 day period for the filing of the Motion for Reconsideration 2. WON the doctrine of res ipsa loquitur is applicable 3. WON the Court of Appeals erred in finding that private respondents were not negligent in the care of Erlinda during the anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was the proximate cause of Erlindas comatose condition. Corollary

thereto, we shall also determine if the Court of Appeals erred in relying on the testimonies of the witnesses for the private respondents 4. What is the cost for the damages HELD 1. NO - A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petitioner Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of the decision of the appellate court was furnished to the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995. - It is elementary that when a party is represented by counsel, all notices should be sent to the partys lawyer at his given address. With a few exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In the present case, since a copy of the decision of the appellate court was not sent to the counsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals already issued a second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner, we believe that the receipt of the former should be considered in determining the timeliness of the filing of the present petition. Based on this, the petition before us was submitted on time. 2. YES - We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of res ipsa loquitur. - 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. Upon these facts and under these circumstances the Court would be able to say, as a matter of common knowledge and observation, if negligence attended the management and care of the patient. Moreover, the liability of the physicians and the hospital in this case is not predicated upon an alleged failure to secure the desired results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed on Erlinda. Thus, upon all these initial determination a case is made out for

the application of the doctrine of res ipsa loquitur. - Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be within the res ipsa loquitur coverage. - Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself. The phrase res ipsa loquitur is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation. 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 defendants want of care. - The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge. - However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an independent or separate ground of liability. Instead, it is considered as merely evidentiary or in the nature of a procedural rule. It is regarded as a mode of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of negligence. In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going forward with the proof. Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: 1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence; 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. - In the above requisites, the fundamental element is the control of the

instrumentality which caused the damage. Such element of control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable, and must establish that the essential elements of the doctrine were present in a particular incident. - 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. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. - It does not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. The real question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scope of customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence. If there was such extraneous interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by

evidence of exculpation, if he could. 3. YES - The CA commited a reversible error. Private respondents were unable to disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the proximate cause of her piteous condition. - Dra. Gutierrez failed to properly intubate the patient. In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez act of seeing her patient for the first time only an hour before the scheduled operative procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physicians centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence. - Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlindas coma was due to bronchospasm mediated by her allergic response to the drug, Thiopental Sodium, introduced into her system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine College of Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine, who advanced private respondents' theory that the oxygen deprivation which led to anoxic encephalopathy, was due to an unpredictable drug reaction to the shortacting barbiturate. We find the theory of private respondents unacceptable. - First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properly enlightening the court about anesthesia practice and procedure and their complications. Dr. Jamora is likewise not an allergologist and could not therefore properly advance expert opinion on allergicmediated processes. Moreover, he is not a pharmacologist and, as such, could not have been capable, as an expert would, of explaining to the court the pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal). - An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs to the field of neurology. On the basis of the foregoing transcript, in which the pulmonologist himself admitted that he could not testify about the drug with medical authority, it is clear that the appellate court erred in giving weight to Dr. Jamoras testimony as an expert in the administration of Thiopental Sodium. - Proximate cause has been defined as that which, in natural and

continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred. An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. It is the dominant, moving or producing cause. - 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 us that respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time as Erlindas cholecystectomy, and was in fact over three hours late for the latters 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. - We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of filling up specialist staff with attending and visiting consultants, who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more apparent than real. - In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for consultant slots, visiting or attending, are required to submit proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. This is particularly true with respondent hospital. - After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physicians performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated. - In other words, private hospitals, hire, fire and exercise real control

over their attending and visiting consultant staff. While consultants are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patients condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule 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. This being the case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioners condition. - The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the formers responsibility under a relationship of patria potestas. Such responsibility ceases when the persons or entity concerned prove that they have observed the diligence of a good father of the family to prevent damage. In other words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of a good father of a family to prevent damage. - 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. - Upon these disquisitions we hold that private respondents are solidarily liable for damages under Article 2176 of the Civil Code. 4. Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at least reflect the correct minimum cost of proper care, not the cost of the care the family is usually compelled to undertake at home to avoid bankruptcy. - Art. 2199. - Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. - Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into account those situations, as in this case, where the resulting injury might be continuing and

possible future complications directly arising from the injury, while certain to occur, are difficult to predict. - In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with certainty. In other words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that these damages cover two distinct phases. - As it would not be equitable - and certainly not in the best interests of the administration of justice - for the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awarded - temperate damages are appropriate. The amount given as temperate damages, though to a certain extent speculative, should take into account the cost of proper care. - In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has remained in that condition for over a decade. Having premised our award for compensatory damages on the amount provided by petitioners at the onset of litigation, it would be now much more in step with the interests of justice if the value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility which generally specializes in such care. They should not be compelled by dire circumstances to provide substandard care at home without the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages would therefore be reasonable. - Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually impossible to quantify. Even the temperate damages herein awarded would be inadequate if petitioners condition remains unchanged for the next ten years. - The husband and the children, all petitioners in this case, will have to live with the day to day uncertainty of the patients illness, knowing any hope of recovery is close to nil. They have fashioned their daily lives around the nursing care of petitioner, altering their long term goals to take into account their life with a comatose patient. They, not the respondents, are charged with the moral responsibility of the care of the victim. The familys moral injury and suffering in this case is clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate. - Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the length and nature of the instant suit we are of the opinion that attorneys fees valued at P100,000.00 are likewise proper. DISPOSITION the decision and resolution of the appellate court

appealed from are hereby modified so as to award in favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as exemplary damages and attorneys fees; and, 5) the costs of the suit. BATIQUIN V CA (Villegas) 258 SCRA 334 DAVIDE; July 5, 1996 NATURE Petition for review of the decision of the Court of Appeals FACTS - Mrs. Villegas submitted to Dr. Batiquin for prenatal care as the latter's private patient sometime before September 21, 1988. In the morning of September 21, 1988 Dr. Batiquin, along with other physicians and nurses, performed a caesarian operation on Mrs. Villegas and successfully delivered the latters baby. - After leaving the hospital, Mrs. Villegas began to suffer abdominal pains and complained of being feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's polyclinic who prescribed for her certain medicines. However, the pains still kept recurring. She then consulted Dr. Ma. Salud Kho. After examining her, Dr Kho suggested that Mrs. Villegas submit to another surgery. - When Dr. Kho opened the abdomen of Mrs. Villegas she found whitishyellow discharge inside, an ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus, and a piece of rubber material on the right side of the uterus, embedded on the ovarian cyst. The piece of rubber appeared to be a part of a rubber glove. This was the cause of all of the infection of the ovaries and consequently of all the discomfort suffered by Mrs. Villegas - The piece of rubber allegedly found was not presented in court, and Dr. Kho testified that she sent it to a pathologist in Cebu City for examination. Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical Certificate, a Progress Record, an Anesthesia Record, a Nurse's Record, and a Physician's Discharge Summary. The trial court, however, regarded these documentary evidence as mere hearsay, "there being no showing that the person or persons who prepared them are deceased or unable to testify on the facts therein stated - There was also doubts as to the whereabouts of the piece of rubber, as 2 versions arose from Dr. Khos testimony: 1) that it was sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away as told by her to Defendant. The failure of the Plaintiffs to reconcile these two different versions served only to weaken

their claim against Defendant Batiquin. The trial court ruled in favor of the defendants. The CA reversed the decision.

ISSUES Procedural WON the court can review questions of fact Substantive WON Dr. Batiquin is liable HELD Procedural YES - While the rule is that only questions of law may be raised in a petition for review on certiorari, there are exceptions, among which are when the factual findings of the trial court and the appellate court conflict, when the appealed decision is clearly contradicted by the evidence on record, or when the appellate court misapprehended the facts Substantive - The focal point of the appeal is Dr. Khos testimony. There were inconsistencies within her own testimony, which led to the different decision of the RTC and CA. The CA was correct in saying that the trial court erred when it isolated the disputed portion of Dr. Khos testimony and did not consider it with other portions of Dr. Khos testimony. Also, the phrase relied upon by the trial court does not negate the fact that Dr. Kho saw a piece of rubber in private respondent Villegas' abdomen, and that she sent it to a laboratory and then to Cebu City for examination by a pathologist. Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based on other than first hand knowledge for, as she asserted before the trial court. - It is also worth noting that the trial court paid heed to Dr. Batiquins testimony, that there was neither any tear on Dr. Batiquin's gloves after the operation nor blood smears on her hands upon removing her gloves. But the trial court failed to recognized that these were mere denials or negative testimonies. Well-settled is the rule that positive testimony is stronger than negative testimony. - While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a reading of the said testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on the witness stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leaving her trustworthiness unimpaired. The trial court's following declaration shows that while it was critical of the lack of care with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting out appraisal of Dr. Kho's trustworthiness. - Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony prevails over the negative testimony in favor of the petitioners. As such, the rule of res ipsa loquitur comes to fore.

- This doctrine 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." - 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 DISPOSITION Decision affirmed D.M. CONSUNJI V CA KAPUNAN; April 20, 2001 NATURE Appeal from CA affirming decision of RTC ordering defendant D.M. Consunji, Inc. to pay damages to plaintiff Maria J. Juego FACTS - At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death. Investigation disclosed that while victim Jose A. Juego together with Jessie Jaluag and Delso Destajo were performing their work on board a steel platform with plywood flooring and cable wires attached to its four corners and hooked at the 5 ton chain block, when suddenly, the bolt or pin which was merely inserted to connect the chain block with the platform came loose causing the whole platform assembly and the victim to fall down to the basement of the elevator core of the building under construction, save his 2 companions who luckily jumped out for safety. - On May 9, 1991, Jose Juegos widow, Maria, filed in the RTC of Pasig a complaint for damages against D.M. Consunji, Inc. The employer raised, among other defenses, the widows prior availment of the benefits from the State Insurance Fund. After trial, the RTC rendered a decision in favor of the widow. On appeal by D. M. Consunji, the CA affirmed the decision of the RTC in toto. ISSUES

1. WON the doctrine of res ipsa loquitur is applicable to prove petitioners negligence 2. WON respondent is precluded from recovering damages under the Civil Code HELD 1. YES Ratio 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. It 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. 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. 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 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 appellees deceased husband; thus, the last requisite is also present. A reasonable presumption or inference of appellants negligence arises. Regrettably, petitioner does not cite any 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. 2. NO Ratio Claimants may invoke either the Workmens Compensation Act or the provisions of the Civil Code, subject to the consequence that the choice of one remedy will exclude the other and that the acceptance of compensation under the remedy chosen will preclude a claim for additional benefits under the other remedy. The exception is where a claimant who has already been paid under the Workmens Compensation Act may still sue for damages under the Civil Code on the basis of supervening facts or developments occurring after he opted for the first remedy. The choice of a party between inconsistent remedies results in a waiver by election. Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an awareness of its consequences. That a waiver is made knowingly and intelligently

must be illustrated on the record or by the evidence. There is no showing that private respondent knew of the remedies available to her when the claim before the ECC was filed. On the contrary, private respondent testified that she was not aware of her rights. DISPOSITION The case is REMANDED to the Regional Trial Court of Pasig City to determine whether the award decreed in its decision is more than that of the ECC, whereupon payments already made to private respondent pursuant to the Labor Code shall be deducted therefrom. In all other respects, the Decision of the CA is AFFIRMED. MANILA ELECTRIC CO. V REMONQUILLO 99 PHIL 117 MONTEMAYOR; May 18, 1956 NATURE Petition for review by certiorari of a decision of the Court of Appeals. FACTS - August 22, 1950: Efren Magno went to the house of Antonio Pealoza, hid stepbrother, on Rodriguez Lanuza St, Manila, to repair a leaking media agua. The media agua was just below the window of the third story. - Standing on said media agua, Magno received from his son thru the window a 3x6 galvanized iron sheet to cover the leaking portion. The lower end of the iron sheet came into contact with the electric wire of the Manila Electric Company parallel to the media agua and 2 feet from it, causing his death by electrocution. - his widow and children filed suit to recover damages from the company. Trial court rendered judgment in their favor. Court of Appeals affirmed the decision. - The electric wire in question was an exposed, uninsulated primary wire stretched between poles pm the street and carrying a charge of 3600 volts. It was installed there some two years ago before Pealozas house was constructed. During the construction of said house a similar incident took place, with less tragic consequences. The owner of the house complained to defendant about the danger which the wire presented, and defendant moved one end of the wire farther from the house by means of a brace, but left the other end where it was. - Regulations of the City required that all wires be kept three feet from the building. - There was no insulation that could have rendered it safe, because there is no insulation material in commercial use for such kind of wire (according to appellant, and this was not refuted). Petitioners Claim - Owner of the house exceeded the limit for the construction of the media agua (17% more). Respondents Comment Owner was given final permit despite the excess of the media agua. ISSUE

WON Manila Electric is guilty of negligence. HELD NO - It was the victim who was guilty of negligence Ratio the liability of electric companies for damages or personal injury is governed by the rules of negligence, nevertheless such companies are not insurers of the safety of the public. Reasoning - The death of Magno was primarily caused by his own negligence, and in some measure by the too close proximity of the media agua 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. Had the house owner followed the terms of the permit given him by the city for the construction of his media agua, the distance from the wires to the edge of said media agua would have been 3ft and 11 3/8 inches. - The company cannot be expected to be always on the lookout for any illegal construction which reduces the distance between its wires and said construction, and to change the installation of its wires so as to preserve said distance. - The violation of the permit for the construction was not the direct cause of the accident. It merely contributed to it. The real cause of the accident or death was the reckless or negligent act of Magno himself. It is to be presumed that due to his age and experience he was qualified to do so. He had training and experience for the job. He could not have been entirely a stranger to electric wires and the danger lurking in them. - To hold the defendant liable in damages for the death of Magno, such supposed negligence of the company must have been the proximate and principal cause of the accident. Disposition The appealed decision of the CA is reversed, and complaint against the Company dismissed. BERNARDO V LEGASPI 29 Phil 12 MORELAND; December 23, 1914 NATURE Appeal from a judgment of CFI Manila dismissing the complaint on the merits filed in an action to recover damages for injuries FACTS - Due to a collision between the respective automobiles of Bernardo and Legaspi, the former filed an action to recover damages for injuries sustained by his car which he alleged were by reason of Legaspi's negligence in causing said collision. Legaspi, on the other hand, filed a cross-complaint alleging it was Bernardo's fault. He also asks for damages.

- The lower court found upon the evidence 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 the parties may recover damages HELD 1. NO - 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 damages suffered. BERNAL V HOUSE 54 PHIL 327 MALCOLM; January 30, 1930 FACTS - Fortunata Enverso with her daughter Purificacion Bernal went to Tacloban, Leyte to attend the procession of Holy Friday. - After the procession, they, 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. - While in front of the offices of the Tacloban Electric & Ice Plant, Ltd., an automobile appeared on which frightened the child. She turned to run, but 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. Despite his efforts, the child died that same night. - It was certified that the cause of death was "Burns, 3rd Degree, whole Body", and that the contributory causes were "Congestion of the Brain and visceras of the chest & abdomen. - The 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 the action should be dismissed due to the contributory negligence of the plaintiffs

HELD NO - The death of the child 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 - 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 doctrines announced in the much debated case of Rakes vs. Atlantic, Gulf and Pacific Co. ([1907], 7 Phil., 359), still rule. Article 1902 of the Civil Code must again be enforced. 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. DISPOSITION Judgment appealed from was in part be reversed and in the court of origin another judgment was issued in favor of Fortunata Enverso and against J.V. House for the amount of P1,000, and for the costs of both instances. SEPARATE OPINION ROMUALDEZ [dissent] - Even taking the finding that the defendant by its negligence helped to bring about the accident which resulted in the death of the child Purificacion Bernal, plaintiff, by negligence, contributed to that most regrettable result. - Judgment appealed from should be affirmed. GOTESCO INVESTMENT CORPORATION V CHATTO 210 SCRA 18 DAVIDE JR.; June 16, 1992 FACTS - Plaintiff Gloria E. Chatto, and her 15-year old daughter, Lina Delza E. Chatto went to see the movie "Mother Dear" at Superama I theater, owned by defendant Gotesco Investment Corporation. - Hardly ten (10) minutes after entering the theater, the ceiling of its balcony collapsed. The theater was plunged into darkness and pandemonium ensued.

- Shocked and hurt, plaintiffs managed to crawl under the fallen ceiling. As soon as they were able to get out to the street they walked the nearby FEU Hospital where they were confined and treated for one (1) day. - The next day, they transferred to the UST hospital. Plaintiff Gloria Chatto was treated in said hospital from June 5 to June 19 and plaintiff Lina Delza Chatto from June 5 to 11. - Due to continuing pain in the neck, headache and dizziness, plaintiff went to Illinois, USA in July 1982 for further treatment. She was treated at the Cook County Hospital in Chicago, Illinois. She stayed in the U.S. for about three (3) months during which time she had to return to the Cook County Hospital five (5) or, six (6) times. - Defendant tried to avoid liability by alleging that the collapse of the ceiling of its theater was done due to force majeure. It maintained that its theater did not suffer from any structural or construction defect. - The trial court awarded actual or compensatory and moral damages and attorney's fees to the plaintiffs. - Respondent Court found the appeal later filed to be without merit. - Its motion for reconsideration of the decision having been denied by the respondent Court, petitioner filed the petition in the SC. ISSUE WON the collapse of the ceiling was caused by force majeur HELD NO - Petitioner's claim that the collapse of the ceiling of the theater's balcony was due to force majeure is not even founded on facts because its own witness, Mr. Jesus Lim Ong, admitted that "he could not give any reason why the ceiling collapsed." Having interposed it as a defense, it had the burden to prove that the collapse was indeed caused by force majeure. That Mr. Ong could not offer any explanation does not imply force majeure. - Definitions of force majeure as cited in Pons y Compaia vs. La Compaia Maritima: 1. Blackstone, in his Commentaries on English Law: Inevitable accident or casualty; an accident produced by any physical cause which is irresistible; such as lightning. tempest, perils of the sea, inundation, or earthquake; the sudden illness or death of a person. 2. Escriche, in his Diccionario de Legislacion y Jurisprudenci,: The event which we could neither foresee nor resist; as for example, the lightning stroke, hail, inundation, hurricane, public enemy, attack by robbers; Vis major est, says Cayo, ea quae consilio humano neque provideri neque vitari potest. Accident and mitigating circumstances. 3. Bouvier: Any accident due to natural cause, directly exclusively without human intervention, such as could not have been prevented by any kind of oversight, pains and care reasonably to have been expected. 4. Corkburn, chief justice, in a well considered English case, said that were a captain uses all the known means to which prudent and

experienced captains ordinarily have recourse, he does all that can be reasonably required of him; and if, under such circumstances, he is overpowered by storm or other natural agency, he is within the rule which gives immunity from the effects of such vis major. The term generally applies, broadly speaking, to natural accidents, such as those caused by lightning, earthquake, tempests, public enemy ,etc. -The real reason why Mr. Ong could not explain the cause or reason is that either he did not actually conduct the investigation or that he isincompetent. He is not an engineer, but an architect who had not even passed the government's examination. - Verily, post-incident investigation cannot be considered as material to the present proceedings. What is significant is the finding of the trial court, affirmed by the respondent Court, that the collapse was due to construction defects. There was no evidence offered to overturn this finding. - The building was constructed barely 4 years prior to the accident in question. It was not shown that any of the causes denominates as force majeure obtained immediately before or at the time of the collapse of the ceiling. Such defects could have been easily discovered if only petitioner exercised due diligence and care in keeping and maintaining the premises. But as disclosed by the testimony of Mr. Ong, there was no adequate inspection of the premises before the date of the accident. - That the structural designs and plans of the building were duly approved by the City Engineer and the building permits and certificate of occupancy were issued do not at all prove that there were no defects in the construction, especially as regards the ceiling, considering that no testimony was offered to prove that it was ever inspected at all. - It is settled that: The owner or proprietor of a place of public amusement impliedly warrants that the premises, appliances and amusement devices are safe for the purpose for which they are designed, the doctrine being subject to no other exception or qualification than that he does not contract against unknown defects not discoverable by ordinary or reasonable means. - This implied warranty has given rise to the rule that: Where a patron of a theater or other place of public amusement is injured, and the thing that caused the injury is wholly and exclusively under the control and management of the defendant, and the accident is such as in the ordinary course of events would not have happened if proper care had been exercised, its occurrence raises a presumption or permits of an inference of negligence on the part of the defendant. - That presumption or inference was not overcome by the petitioner. - Even assuming that the cause of the collapse was due to force majeure, petitioner would still be liable because it was guilty of negligence, which the trial court denominated as gross. As gleaned from Bouvier's definition of and Cockburn's elucidation on force majeure for one to be exempt from any liability because of it, he must have exercised care, i.e., he should not have been guilty of negligence.

Disposition Judgment was denying the instant petition with costs against petitioner. PLDT V CA (SPS ESTEBAN) REGALADO; September 29, 1989 [CITATION] NATURE Petition for certiorari to review the resolution of the Court of Appeals. FACTS - July 30, 1968 Jeep of Esteban spouses ran over a mound of earth 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. - 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, in its answer, denies liability on the contention 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, an independent contractor which undertook the said construction work. - TC ruled in favor of Esteban spouses whereas the CA reversed the ruling. ISSUE WON the Esteban spouses can claim damages from PLDT HELD NO Ratio A person claiming damages for the negligence of another has the burden of proving the existence of such fault or negligence causative thereof. The facts constitutive of negligence must be affirmatively established by competent evidence. Reasoning - The accident was due to the lack of diligence of respondent Antonio Esteban and was not imputable to negligent omission on the part of petitioner PLDT. > Jeep was running along the inside lane of Lacson Street. If it had remained on that inside lane, it would not have hit the accident mound > That plaintiffs jeep was on the inside lane before it swerved to hit the ACCIDENT MOUND could have been corroborated by a picture showing Lacson Street to the south of the ACCIDEN MOUND. > Plaintiffs jeep was not running at 25 kilometers an hour as plaintiff husband claimed. At that speed, he could have braked the vehicle the moment it struck the ACCIDENT MOUND.

> If the accident did not happen because 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, then plaintiff husband had not exercised the deligence of a good father of a family to avoid the accident. - The above findings clearly show that the negligence of respondent Antonio Esteban was not only contributory to his injuries and those of his wife but goes to the very cause of the occurrence of the accident, as one of its determining factors, and thereby precludes their right to recover damages. Disposition resolutions of respondent CA, dated March 11, 1990 and September 3, 1980, are hereby SET ASIDE, Its original decision, promulgated on September 25, 1979, is hereby REINSTATED and AFFIRMED. GENOBIAGON V CA (PEOPLE OF THE PHILS) 178 SCRA 422 GRIO-AQUINO; October 22, 1957 NATURE Petition for review of the CAs decision affirming the conviction of the petitioner of the crime of homicide thru reckless imprudence. FACTS - On Dec 31, 1959, at about 7:30 PM, a rig driven by Genobiagon bumped an old woman who was crossing the street. The appellant's rig was following another at a distance of two meters. The old woman started to cross when the first rig was approaching her, but as appellant's vehicle was going so fast not only because of the steep down-grade of the road, but also because he was trying to overtake the rig ahead of him, the appellant's rig bumped the old woman, who fell at the middle of the road. The appellant continued to drive on, but a bystander Mangyao saw the incident and shouted at the appellant to stop. He ran after appellant when the latter refused to stop. Overtaking the appellant, Mangyao asked him why he bumped the old woman and his answer was, 'it was the old woman that bumped him.' The appellant went back to the place where the old woman was struck by his rig. The old woman was unconscious. She was then loaded in a jeep and brought to the hospital where she died 3 hours later. - Genobiagon was convicted of homicide thru reckless imprudence. CA affirmed - Genobiagon claims CA erred in not finding that the reckless negligence of the victim was the proximate cause of the accident which led to her death ISSUES WON contributory negligence can be used as defense by Genobiagon 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. Quiones, 44 O.G. 1520) Disposition the appealed decision is affirmed with modification as to the civil liability of the petitioner which is hereby increased to P30,000. Costs against petitioner. RAKES V ATLANTIC [CITATION] [PONENTE] NATURE Action for damages FACTS - The plaintiff, Rakes, one of a group of 8 African-American laborers in the employment of defendant, Atlantic, was at work transporting iron rails from the harbor in Manila. The men were hauling the rails on 2 hand cars, some behind or at it sides and some pulling the cars in the front by a rope. At one point, the track sagged, the tie broke, the car canted and the rails slid off and caught the plaintiff who was walking by the cars side, breaking his leg, which was later amputated at the knee. - The plaintiffs witness alleged that a noticeable depression in the track had appeared after a typhoon. This was reported to the foreman, Mckenna, but it had not been proven that Atlantic inspected the track or had any proper system of inspection. Also, there were no side guards on the cars to keep the rails from slipping off. - However, the companys officers and 3 of the workers testified that there was a general prohibition frequently made known to all against walking by the side of cars. As Rakes was walking along the cars side when the accident occurred, he was found to have contributed in some degree to the injury inflicted, although not as the primary cause. - Atlantic contends that the remedy for injury through negligence lies only in a criminal action against the official directly responsible and that the employer be held only subsidiarily liable. ISSUE WON there was contributory negligence on the part of petitioner HELD YES - Petitioner had walked along the side of the car despite a prohibition to do so by the foreman. -The negligence of the injured person contributing to his injury but not being one of the determining causes of the principal accident, does not

operate as a bar to recovery, but only in reduction of his damages. Each party is chargeable with damages in proportion to his fault. - Trial court assessed that damages to plaintiff amount to PhP5,000. SC deducted PhP2,500, the amount fairly attributable to his own negligence. SEPARATE OPINION WILLARD AND CARSON [dissent] - the negligence of the defendant alone was insufficient to cause the accidentit also required the negligence of the plaintiff. Because of this, plaintiff should not be afforded relief PHILIPPINE BANK OF COMMERCE V CA (ROMMELS MARKETING CORP.) 269 SCRA 695 HERMOSISIMA JR; March 14, 1997 NATURE Petition for review challenging the CA decision affirming the RTC decision in a civil case FACTS - the case stems from a complaint filed by Rommels Marketing Corporation (RMC) to recover from the former Philippine Bank of Commerce (PBC) the sum of P304,979.74 representing various deposits it had made in its current account with the bank but which were not credited, and were instead deposited to the account of one Bienvenido Cotas, allegedly due to the gross and inexcusable negligence of the petitioner bank. ISSUE What is the proximate cause of the loss, to the tune of P304,979.74, suffered by the private respondent RMC petitioner bank's negligence or that of private respondent's? HELD - The proximate cause of the loss was the negligent act of the bank, thru its teller Ms. Azucena Mabayad, in validating the deposit slips, both original and duplicate, presented by Ms. Yabut to Ms. Mabayad, notwithstanding the fact that one of the deposit slips was not completely accomplished. Ratio 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 a quasi-delict and is governed by the provisions of this Chapter Reasoning - There are three elements of a quasi-delict: (a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some other

person for whose acts he must respond; and (c) the connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff. - In the case at bench, there is no dispute as to the damage suffered by the private respondent. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would do. - Test by which to determine the existence of negligence in a particular case: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that. - Applying the above test, it appears that the bank's teller, Ms. Azucena Mabayad, was negligent in validating, officially stamping and signing all the deposit slips prepared and presented by Ms. 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, as testified to by Ms. Mabayad herself. - The fact that the duplicate slip was not compulsorily required by the bank in accepting deposits should not relieve the petitioner bank of responsibility. The odd circumstance alone that such duplicate copy lacked one vital information that of the name of the account holder should have already put Ms. Mabayad on guard. Rather than readily validating the incomplete duplicate copy, she should have proceeded more cautiously by being more probing as to the true reason why the name of the account holder in the duplicate slip was left blank while that in the original was filled up. She should not have been so naive in accepting hook, line and sinker the too shallow excuse of Ms. Irene Yabut to the effect that since the duplicate copy was only for her personal record, she would simply fill up the blank space later on. 11 A "reasonable man of ordinary prudence" 12 would not have given credence to such explanation and would have insisted that the space left blank be filled up as a condition for validation. Unfortunately, this was not how bank teller Mabayad proceeded thus resulting in huge losses to the private respondent. - Negligence here lies not only on the part of Ms. Mabayad but also on the part of the bank itself in its lackadaisical selection and supervision of Ms. Mabayad. In the testimony of Mr. Romeo Bonifacio, then Manager of the Pasig Branch of the petitioner, to the effect that, while he ordered the investigation of the incident, he never came to know that blank deposit slips were validated in total disregard of the bank's validation procedures.

- It was in fact only when he testified in this case in February, 1983, or after the lapse of more than seven (7) years counted from the period when the funds in question were deposited in plaintiff's accounts (May, 1975 to July, 1976) that bank manager Bonifacio admittedly became aware of the practice of his teller Mabayad of validating blank deposit slips. Undoubtedly, this is gross, wanton, and inexcusable negligence in the appellant bank's supervision of its employees. - It was this negligence of Ms. Azucena Mabayad, coupled by the negligence of the petitioner bank in the selection and supervision of its bank teller, which was the proximate cause of the loss suffered by the private respondent, and not the latter's act of entrusting cash to a dishonest employee, as insisted by the petitioners. - Proximate cause is determined on the facts of each case upon mixed considerations of logic, common sense, policy and precedent. Bank of the Phil. Islands v. Court of Appeals, 17 defines proximate cause as "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. . . ." In this case, absent the act of Ms. Mabayad in negligently validating the incomplete duplicate copy of the deposit slip, Ms. Irene Yabut would not have the facility with which to perpetrate her fraudulent scheme with impunity. - LAST CLEAR CHANCE: under the doctrine of "last clear chance" (also referred to, at times as "supervening negligence" or as "discovered peril"), petitioner bank was indeed the culpable party. This doctrine, in essence, states that 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. The rule would also mean that an 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 the exercise of due diligence. Here, assuming that private respondent RMC was negligent in entrusting cash to a dishonest employee, thus providing the latter with the opportunity to defraud the company, as advanced by the petitioner, yet it cannot be denied that the petitioner bank, thru its teller, had the last clear opportunity to avert the injury incurred by its client, simply by faithfully observing their self-imposed validation procedure. - In the case of banks, the degree of diligence required is more than that of a good father of a family. Considering the fiduciary nature of their relationship with their depositors, banks are duty bound to treat the accounts of their clients with the highest degree of care. - 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 23 under A2179 CC, to wit: . . . 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. In view of this, we believe that the demands of substantial justice are satisfied by allocating the damage on a 60-40 ratio. Thus, 40% of the damage awarded by the respondent appellate court, except the award of P25,000.00 attorney's fees, shall be borne by private respondent RMC; only the balance of 60% needs to be paid by the petitioners. The award of attorney's fees shall be borne exclusively by the petitioner. Disposition the decision of the respondent Court of Appeals is modified by reducing the amount of actual damages private respondent is entitled to by 40%. Petitioners may recover from Ms. Azucena Mabayad the amount they would pay the private respondent. Private respondent shall have recourse against Ms. Irene Yabut. In all other respects, the appellate court's decision is AFFIRMED. SEPARATE OPINION PADILLA [dissent] - It seems that an innocent bank teller is being unduly burdened with what should fall on Ms. Irene Yabut, RMC's own employee, who should have been charged with estafa or estafa through falsification of private document. Why is RMC insulating Ms. Irene Yabut from liability when in fact she orchestrated the entire fraud on RMC, her employer? - Going back to Yabut's modus operandi, it is not disputed that each time Yabut would transact business with PBC's tellers, she would accomplish two (2) copies of the current account deposit slip. PBC's deposit slip, as issued in 1975, had two parts. The upper part was called the depositor's stub and the lower part was called the bank copy. Both parts were detachable from each other. The deposit slip was prepared and signed by the depositor or his representative, who indicated therein the current account number to which the deposit was to be credited, the name of the depositor or current account holder, the date of the deposit, and the amount of the deposit either in cash or in checks. - Since Yabut deposited money in cash, the usual bank procedure then was for the teller to count whether the cash deposit tallied with the amount written down by the depositor in the deposit slip. If it did, then the teller proceeded to verify whether the current account number matched with the current account name as written in the deposit slip. - In the earlier days before the age of full computerization, a bank normally maintained a ledger which served as a repository of accounts to which debits and credits resulting from transactions with the bank were posted from books of original entry. Thus, it was only after the transaction was posted in the ledger that the teller proceeded to

machine validate the deposit slip and then affix his signature or initial to serve as proof of the completed transaction. - It should be noted that the teller validated the depositor's stub in the upper portion and the bank copy on the lower portion on both the original and duplicate copies of the deposit slips presented by Yabut. The teller, however, detached the validated depositor's stub on the original deposit slip and allowed Yabut to retain the whole validated duplicate deposit slip that bore the same account number as the original deposit slip, but with the account name purposely left blank by Yabut, on the assumption that it would serve no other purpose but for a personal record to complement the original validated depositor's stub. - Thus, when Yabut wrote the name of RMC on the blank account name on the validated duplicate copy of the deposit slip, tampered with its account number, and superimposed RMC's account number, said act only served to cover-up the loss already caused by her to RMC, or after the deposit slip was validated by the teller in favor of Yabut's husband. Stated otherwise, when there is a clear evidence of tampering with any of the material entries in a deposit slip, the genuineness and due execution of the document become an issue in resolving whether or not the transaction had been fair and regular and whether the ordinary course of business had been followed by the bank. - The legal or proximate cause of RMC's loss was when Yabut, its employee, deposited the money of RMC in her husband's name and account number instead of that of RMC, the rightful owner of such deposited funds. Precisely, it was the criminal act of Yabut that directly caused damage to RMC, her employer, not the validation of the deposit slip by the teller as the deposit slip was made out by Yabut in her husband's name and to his account. - LAST CLEAR CHANCE: As for the doctrine of "last clear chance," it is my considered view that the doctrine assumes that the negligence of the defendant was subsequent to the negligence of the plaintiff and the same must be the proximate cause of the injury. In short, there must be a last and a clear chance, not a last possible chance, to avoid the accident or injury. It must have been a chance as would have enabled a reasonably prudent man in like position to have acted effectively to avoid the injury and the resulting damage to himself. - In the case at bar, the bank was not remiss in its duty of sending monthly bank statements to private respondent RMC so that any error or discrepancy in the entries therein could be brought to the bank's attention at the earliest opportunity. Private respondent failed to examine these bank statements not because it was prevented by some cause in not doing so, but because it was purposely negligent as it admitted that it does not normally check bank statements given by banks. - It was private respondent who had the last and clear chance to prevent any further misappropriation by Yabut had it only reviewed the status of its current accounts on the bank statements sent to it monthly or regularly. Since a sizable amount of cash was entrusted to Yabut, private respondent should, at least, have taken ordinary care of its

10

concerns, as what the law presumes. Its negligence, therefore, is not contributory but the immediate and proximate cause of its injury. JUNTILLA V FONTANAR 136 SCRA 624 GUITERREZ JR; May 31, 1985 NATURE Petition to review the decision of CFI of Cebu FACTS - Petitioner Roberto Juntilla was sitting a the front seat of a jeepney (driven by one Berfol Camoro, registered under the franchise of Clemente Fontanar, but actually owned by Fernando Banzon) when its right rear tire exploded causing it to turn turtle. Plaintiff was thrown out of the vehicle and lost consciousness upon landing on the ground. When he came back to his senses, he found that he had a lacerated wound on his right palm, injuries on his left arm, right thigh and on his back and also found this Omega wrist watch was lost. He went to Danao city and upon arrival there he entered the City Hospital to attend to his injuries and asked his father-in-law to go to site of the accident to look for his watch but the watch was nowhere to be found. - Petitioner then filed a civil case for breach of contract with damages before the City Court of Cebu against Fontanar, Banzon, and Camoro, who filed their answer, alleging that the accident was beyond their control taking into account that the tire that exploded was newly bought and slightly used at the time it blew up. - City Court rendered judgment in favor of petitioner. The respondents then appealed to the CFI of Cebu, which reversed the judgment upon a finding that the accident in question was due to a fortuitous event. Petitioners MFR was denied, hence this appeal. ISSUES 1. WON the CFI erred in absolving the carrier from any liability upon a finding that the tire blow out is a fortuitous event 2. WON the accident was due to a fortuitous event HELD 1. YES - The CFI relied on the ruling of the CA in Rodriguez v Red Line Transportation Co., that a tire blow-out does not constitute negligence unless the tire was already old and should not have been used at all. This conclusion is based on a misapprehension of overall facts. In La Mallorca and Pampanga Bus Co. v De Jesus, et al, We held that, not only are the rulings of the CA in Rodriguez v Red Line Trans. Co. not binding on this Court but they were also based on considerations quite different from those that obtain in the case at bar. In the case at bar, there are specific acts of negligence on the part of the respondents. The records show that the passenger jeepney turned turtle and jumped into a ditch immediately after its right rear tire exploded. The evidence shows

that the passenger jeepney was running at a very fast speed before the accident. We agree with the observation of the petitioner that a public utility jeep running at a regular and safe speed will not jump into a ditch when its right rear tire blows up. There is also evidence to show that the passenger jeepney was overloaded at the time of the accident. The petitioner stated that there were 3 passengers in the front seat and 14 in the rear. - While it may be true that the tire that blew-up was still good because the grooves of the tire were still visible, this fact alone does not make the explosion of the tire a fortuitous event. No evidence was presented to show that the accident was due to adverse road conditions or that precautions were taken by the jeepney driver to compensate for any conditions liable to cause accidents. The sudden blowing-up, therefore, could have been caused by too much air pressure injected into the tire coupled by the fact that the jeepney was overloaded and speeding at the time of the accident. 2. NO Ratio A caso fortuito (fortuitous event) presents the following essential characteristics: 1. The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will 2. It must be impossible to foresee the even which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid 3. The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner 4. The obligor (debtor) must be free from any participation in the aggravation of the injury resulting to the creditor Reasoning - In the case at bar, the cause of the unforeseen and unexpected occurrence was not independent of the human will. The accident was caused either through the negligence of the driver or because of mechanical defects in the tire. Common carriers should teach their drivers not to overload their vehicles not to exceed safe and legal speed limits and to know the correct measures to take when a tire blows up thus insuring the safety of passengers at all times. - Relative to the contingency of mechanical defects, we held in Necesito, et al. v. Paras, et al, that: The preponderance of authority is in favor of the doctrine that a passenger is entitled to recover damages from a carrier for an injury resulting from a defect in an appliance purchased from a manufacturer, whenever it appears that the defect would have been discovered by the carrier if it had exercised the degree of care which under the circumstances was incumbent upon it. with regard to inspection and application of the necessary tests. For the purposes of this doctrine, the manufacturer is considered as being in law the agent or servant of the carrier, as far as regards the work of constructing the appliance. According to this theory, the good repute of the manufacturer will not relieve the carrier from liability. - It is sufficient to reiterate that the source of a common carrier's legal liability is the contract of carriage, and by entering into the said contract,

it binds itself to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of a very cautious person, with a due regard for all the circumstances. The records show that this obligation was not met by the respondents. Disposition Decision appealed from is REVERSED and SET ASIDE. Decision of City Court is REINSTATED HERNANDEZ V COMMISSION ON AUDIT 179 SCRA 39 CRUZ; November 6, 1989 NATURE A petition to reverse Commission on Audits denial of relief FACTS - Teodoro M. Hernandez was the officer-in-charge and special disbursing officer of the Ternate Beach Project of the Philippine Tourism Authority in Cavite. He went to the main office in Manila to encash 2 checks covering the wages of the employees and the operating expenses of the Project. He estimated that the money would be available by 10am and that he would be back in Ternate by about 2pm of the same day. However, the processing of the checks was completed only at 3pm. The petitioner decided nevertheless to encash them because the Project employees would be waiting for their pay the following day. And so, he collected the cash value of the checks. The petitioner had two choices: (1) return to Cavite that same afternoon and arrive there in the early evening; or (2) take the money with him to his house in Marilao, Bulacan, spend the night there, and leave for Ternate the following morning. He opted for the second, thinking it the safer one. He took a passenger jeep bound for his house in Bulacan. It was while the vehicle was along EDSA that two persons with knives boarded and forcibly took the money he was carrying. Hernandez, after the initial shock, immediately followed in desperate pursuit. He caught up with Virgilio Alvarez and overcame him after a scuffle. Alvarez was subsequently charged with robbery and pleaded guilty. But the holdupper who escaped is still at large and the stolen money he took with him has not been recovered. - the petitioner, invoking the foregoing facts, filed a request for relief from money accountability under Section 638 of the Revised Administrative Code.1
1

Section 638. Credit for loss occurring in transit or due to casualty Notice to Auditor. When a loss of government funds or property occurs while the same is in transit or is caused by fire, theft, or other casualty, the officer accountable therefor or having custody thereof shall immediately notify the Auditor General, or the provincial auditor, according as a matter is within the original jurisdiction of the one or the other, and within thirty days or such longer period as the Auditor, or provincial auditor, may in the particular case allow, shall present his application for relief, with the available evidence in support thereof. An officer who fails to comply with this requirement shall not be relieved of liability or allowed credit for any such loss in the settlement of his accounts.

11

- however, the Commission on Audit, through then Chairman Francisco S. Tantuico, jr. denied the petitioner's request, observing inter alia: In the instant case, the loss of the P10,175.00 under the accountability of Mr. Hernandez can be attributed to his negligence because had he brought the cash proceeds of the checks (replenishment fund) to the Beach Park in Ternate immediately after encashment for safekeeping in his office, which is the normal procedure in the handling of public funds, the loss of said cash thru robbery could have been aborted. - In the petition at bar, Hernandez claims that the respondent COA acted with grave abuse of discretion in denying him relief and in holding him negligent for the loss of the stolen money. He avers he has done only what any reasonable man would have done and should not be held accountable for a fortuitous event over which he had no control. - On his decision to take the money home that afternoon instead of returning directly to Ternate, he says that the first course was more prudent as he saw it, if only because his home in Marilao was much nearer than his office in Ternate; that the likelihood of robbery during the time in question was stronger in Ternate than in Marilao; that what happened was a fortuitous event that could not have reasonably been foreseen, especially on that busy highway. - then Solicitor-General argued that Hernandez was negligent in the safekeeping of the stolen funds. Later, however, his successor sided with the petitioner, agreeing that Hernandez had not committed any negligence or, assuming he was guilty of contributory negligence, had made up for it with his efforts to retrieve the money and his capture of one of the robbers, who was eventually convicted. - COA insists that the petitioner should not be relieved from his money accountability because it was his own negligence that led to the loss of the cash he had sought to take not to Ternate but to Marilao. Its contention is that the petitioner should not have encashed the checks as the hour was already late and he knew he could not return to Ternate before nightfall. The memo concludes that in deciding to take the money with him to Marilao after imprudently withdrawing it from the main office, the petitioner was assuming a risk from which he cannot now be excused after the loss of the money as a result of the robbery to which it was unreasonably exposed.

rely on is a reasoned conjecture of what might happen, based on common sense and our own experiences, or our intuition, if you will, and without any mystic ability to peer into the future. So it was with the petitioner. - It is true that the petitioner miscalculated, but the Court feels he should not be blamed for that. The decision he made seemed logical at that time and was one that could be expected of a reasonable and prudent person. Disposition The petitioner is entitled to be relieved from accountability for the money forcibly taken from him. ACCORDINGLY, the petition is GRANTED. GOTESCO INVESTMENT CORPORATION V CHATTO 210 SCRA 18 DAVIDE JR; June 16, 1992 NATURE Petition for Review FACTS - In the afternoon of June 4, 1982 Gloria E. Chatto, and her 15-year old daughter, Lina Delza E. Chatto went to see the movie "Mother Dear" at Superama I theater, owned by defendant Gotesco Investment Corporation. They bought balcony tickets but even then were unable to find seats considering the number of people patronizing the movie. Hardly ten (10) minutes after entering the theater, the ceiling of its balcony collapsed. The theater was plunged into darkness and pandemonium ensued. Shocked and hurt, plaintiffs managed to crawl under the fallen ceiling. As soon as they were able to get out to the street they walked the nearby FEU Hospital where they were confined and treated for one (1) day. - The next day, they transferred to the UST hospital. Plaintiff Gloria Chatto was treated in said hospital from June 5 to June 19 and plaintiff Lina Delza Chatto from June 5 to 11. Per Medico Legal Certificate (Exh, "C") issued by Dr. Ernesto G. Brion, plaintiff Lina Delza Chatto suffered the following injuries: - Defendant tried to avoid liability by alleging that the collapse of the ceiling of its theater was done due to force majeure. It maintained that its theater did not suffer from any structural or construction defect. ISSUES 1. WON Jesus Lim Ongs investigation maybe given weight in the trial 2. WON the collapse was due to force majeure HELD 1. NO - there was no authoritative investigation conducted by impartial civil and structural engineers on the cause of the collapse of the theater's ceiling, Jesus Lim Ong is not an engineer, He is a graduate of architecture from the St. Louie University in Baguio City. It does not appear he has

ISSUE WON petitioners acts are so tainted with negligence or recklessness as to justify the denial of the petitioner's request for relief from accountability for the stolen money HELD NO - This was undoubtedly a fortuitous event covered by the said provisions, something that could not have been reasonably foreseen although it could have happened, and did. For most of us, all we can

passed the government examination for architects. In fine, the ignorance of Mr. Ong about the cause of the collapse of the ceiling of their theater cannot be equated, as an act, of God. To sustain that proposition is to introduce sacrilege in our jurisprudence. 2. NO - Petitioner's claim that the collapse of the ceiling of the theater's balcony was due to force majeure is not even founded on facts because its own witness, Mr. Jesus Lim Ong, admitted that "he could not give any reason why the ceiling collapsed." Having interposed it as a defense, it had the burden to prove that the collapse was indeed caused by force majeure. It could not have collapsed without a cause. That Mr. Ong could not offer any explanation does not imply force majeure. Petitioner could have easily discovered the cause of the collapse if indeed it were due to force majeure. To Our mind, the real reason why Mr. Ong could not explain the cause or reason is that either he did not actually conduct the investigation or that he is, as the respondent Court impliedly held, incompetent. He is not an engineer, but an architect who had not even passed the government's examination. Verily, postincident investigation cannot be considered as material to the present proceedings. What is significant is the finding of the trial court, affirmed by the respondent Court, that the collapse was due to construction defects. There was no evidence offered to overturn this finding. The building was constructed barely four (4) years prior to the accident in question. It was not shown that any of the causes denominates as force majeure obtained immediately before or at the time of the collapse of the ceiling. Such defects could have been easily discovered if only petitioner exercised due diligence and care in keeping and maintaining the premises. But as disclosed by the testimony of Mr. Ong, there was no adequate inspection of the premises before the date of the accident. His answers to the leading questions on inspection disclosed neither the exact dates of said. inspection nor the nature and extent of the same. That the structural designs and plans of the building were duly approved by the City Engineer and the building permits and certificate of occupancy were issued do not at all prove that there were no defects in the construction, especially as regards the ceiling, considering that no testimony was offered to prove that it was ever inspected at all. - It is settled that - The owner or proprietor of a place of public amusement impliedly warrants that the premises, appliances and amusement devices are safe for the purpose for which they are designed, the doctrine being subject to no other exception or qualification than that he does not contract against unknown defects not discoverable by ordinary or reasonable means. - This implied warranty has given rise to the rule that - Where a patron of a theater or other place of public amusement is injured, and the thing that caused the injury is wholly and exclusively under the control and management of the defendant, and the accident is such as in the ordinary course of events would not have happened if proper care had been exercised, its occurrence raises a presumption or permits of an inference of negligence on the part of the defendant.

12

Disposition judgment is hereby rendered DENYING the instant petition with costs against petitioner. SERVANDO V PHILIPPINE STEAM NAVIGATION CO 117 SCRA 832 ESCOLIN; 1982 NATURE This appeal, originally brought to the Court of Appeals, seeks to set aside the decision of the Court of First Instance of Negros Occidental in Civil Cases Nos. 7354 and 7428, declaring appellant Philippine Steam Navigation liable for damages for the loss of the appellees' cargoes as a result of a fire which gutted the Bureau of Customs' warehouse in Pulupandan, Negros Occidental. FACTS - On November 6, 1963, appellees Clara Uy Bico and Amparo Servando loaded on board the appellant's vessel for carriage from Manila to Pulupandan, Negros Occidental several cargoes (cavans of rice, colored papers, toys etc) as evidenced by the corresponding bills of lading issued by the appellant. Upon arrival of the vessel at Pulupandan, in the morning of November 18, 1963, the cargoes were discharged, complete and in good order, unto the warehouse of the Bureau of Customs. At about 2:00 in the afternoon of the same day, said warehouse was razed by a fire of unknown origin, destroying appellees' cargoes. Before the fire, however, appellee Uy Bico was able to take delivery of 907 cavans of rice Appellees' claims for the value of said goods were rejected by the appellant. - On the bases of the foregoing facts, the lower court rendered a decision, ordering Philippine Steam to pay for damages. The court a quo held that the delivery of the shipment in question to the warehouse of the Bureau of Customs is not the delivery contemplated by Article 1736; and since the burning of the warehouse occurred before actual or constructive delivery of the goods to the appellees, the loss is chargeable against the appellant. Philippine Steam on the other hand relies on the following: Clause 14. Carrier shall not be responsible for loss or damage to shipments billed 'owner's risk' unless such loss or damage is due to negligence of carrier. Nor shall carrier be responsible for loss or damage caused by force majeure, dangers or accidents of the sea or other waters; war; public enemies; . . . fire . ... ISSUE WON the above stipulation validly limits the liability of the shipowner in this case HELD YES Ratio The parties may stipulate anything in the contract for so long as the stipulation is not contrary to law, morals, public policy. The

stipulation which merely iterates the principle of caso fortuito is for all intents and purposes valid. Reasoning - We sustain the validity of the above stipulation; there is nothing therein that is contrary to law, morals or public policy. - Appellees would contend that the above stipulation does not bind them because it was printed in fine letters on the back-of the bills of lading; and that they did not sign the same. This argument overlooks the pronouncement of this Court in Ong Yiu vs. Court of Appeals, promulgated June 29, 1979, 3 where the Court held that while it may be true that petitioner had not signed the plane ticket , he is nevertheless bound by the provisions thereof. 'Such provisions have been held to be a part of the contract of carriage, and valid and binding upon the passenger regardless of the latter's lack of knowledge or assent to the regulation'. It is what is known as a contract of 'adhesion', in regards which it has been said that contracts of adhesion wherein one party imposes a ready made form of contract on the other, as the plane ticket in the case at bar, are contracts not entirely prohibited. The one who adheres to the contract is in reality free to reject it entirely; if he adheres, he gives his consent." (Tolentino, Civil Code, Vol. IV, 1962 Ed., p. 462, citing Mr. Justice J.B.L. Reyes, Lawyer's Journal, Jan. 31, 1951, p. 49). - Besides, the agreement contained in the above quoted Clause 14 is a mere iteration of the basic principle of law written in Article 1 1 7 4 of the Civil Code2 Thus, where fortuitous event or force majeure is the immediate and proximate cause of the loss, the obligor is exempt from liability for non-performance. The Partidas, the antecedent of Article 1174 of the Civil Code, defines 'caso fortuito' as 'an event that takes place by accident and could not have been foreseen. Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robbers.' - In its dissertation of the phrase 'caso fortuito' the Enciclopedia Juridicada Espanola 5 says: "In a legal sense and, consequently, also in relation to contracts, a 'caso fortuito' presents the following essential characteristics: (1) the cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will; (2) it must be impossible to foresee the event which constitutes the 'caso fortuito', or if it can be foreseen, it must be impossible to avoid; (3) the occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (4) the obligor must be free from any participation in the aggravation of the injury resulting to the creditor." In the case at bar, the burning of the customs warehouse was an extraordinary event which happened independently of the will of the appellant. The latter could not have foreseen the event.

- There is nothing in the record to show that appellant carrier ,incurred in delay in the performance of its obligation. It appears that appellant had not only notified appellees of the arrival of their shipment, but had demanded that the same be withdrawn. In fact, pursuant to such demand, appellee Uy Bico had taken delivery of 907 cavans of rice before the burning of the warehouse. Nor can the appellant or its employees be charged with negligence. The storage of the goods in the Customs warehouse pending withdrawal thereof by the appellees was undoubtedly made with their knowledge and consent. Since the warehouse belonged to and was maintained by the government, it would be unfair to impute negligence to the appellant, the latter having no control whatsoever over the same. Disposition judgment appealed from is hereby set aside. SEPARATE OPINION AQUINO [concur] - I concur. Under article 1738 of the Civil Code "the extraordinary liability of the common carrier continues to be operative even during the time the goods are stored in the warehouse of the carrier at the place of destination, until the consignee has been advised of the arrival of the goods and has had reasonable opportunity thereafter to remove them or otherwise dispose of them". - From the time the goods in question were deposited in the Bureau of Customs' warehouse in the morning of their arrival up to two o' clock in the afternoon of the same day, when the warehouse was burned, Amparo C. Servando and Clara Uy Bico, the consignees, had reasonable opportunity to remove the goods. Clara had removed more than one-half of the rice consigned to her. Moreover, the shipping company had no more control and responsibility over the goods after they were deposited in the customs warehouse by the arrastre and stevedoring operator. No amount of extraordinary diligence on the part of the carrier could have prevented the loss of the goods by fire which was of accidental origin. NATIONAL POWER CORP V CA (RAYO ET AL) DAVIDE JR; May 21, 1993 NATURE Petition for review on certiorari under Rule 45 of the Revised Rules of Court FACTS - When the water level in the Angat dam went beyond the allowable limit at the height of typhoon Kading NPC opened three of the dams spillways to release the excess water in the dam. This however caused the inundation of the banks of the Angat river which caused persons and animals to drown and properties to be washed away.

Article 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable.

13

- The flooding was purportedly caused by the negligent release by the defendants of water through the spillways of the Angst Dam (Hydroelectric Plant). Plaintiffs claim: - NPC operated and maintained a multi-purpose hydroelectric plant in the Angat River - despite the defendants' knowledge of the impending entry of typhoon "Kading," they failed to exercise due diligence in monitoring the water level at the dam - when the said water level went beyond the maximum allowable limit at the height of the typhoon, the defendants suddenly, negligently and recklessly opened three (3) of the dam's spillways, thereby releasing a large amount of water which inundated the banks of the Angat River causing the death of members of the household of the plaintiffs, together with their animals Respondents comments: - NPC exercised due care, diligence and prudence in the operation and maintenance of the hydroelectric plant - NPC exercised the diligence of a good father in the selection of its employees - written notices were sent to the different municipalities of Bulacan warning the residents therein about the impending release of a large volume of water with the onset of typhoon "Kading" and advising them to take the necessary Precautions - the water released during the typhoon was needed to prevent the collapse of the dam and avoid greater damage to people and property - in spite of the precautions undertaken and the diligence exercised, they could still not contain or control the flood that resulted - the damages incurred by the private respondents were caused by a fortuitous event or force majeure and are in the nature and character of damnum absque injuria. ISSUES 1. WON NPC was guilty of negligence 2. WON (applying the ruling of NAkpil & Sons v. CA) NPC is liable given that the inundation was caused by force majeure HELD 1. YES - A similar case entitled National Power Corporation, et al. vs, Court of Appeals, et al.," involving the very same incident subject of the instant petition. The court there declared that the proximate cause of the loss and damage sustained by the plaintiffs therein--who were similarly situated as the private respondents herein-was the negligence of the petitioners, - on the basis of its meticulous analysis and evaluation of the evidence a dduced by the parties in the cases subject of CA-G.R. CV Nos. 2729093, public respondent found as conclusively established that indeed, the petitioners were guilty of "patent gross and evident lack of foresight, imprudence and negligence in the management and operation of Angat Dam," and that "the extent of the opening of the spillways, and the

magnitude of the water released, are all but products of defendantsappellees headlessness, slovenliness, and carelessness."and that the 24 October 1978 'early warning notice" supposedly sent to the affected municipalities, the same notice involved in the case at bar, was insufficient. 2. YES - given that NPC is guilty of negligence. Juan F. Nakipil & Sons vs. Court of Appeals is still good law as far as the concurrent liability of an obligor in the case of force majeure is concerned. - In the Nakpil case it was held that "To exempt the obligor from liability under Article 1174 of the Civil Code, for a breach of an obligation due to an 'act of God,' the following must concur: (a) the cause of the breach of the obligation must be independent of the will of the debtor, (b) the event must be either unforeseeable or unavoidable; (c) the event must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (d) the debtor must be free from any participation in, or aggravation of the injury to the creditor. Thus, if upon the happening of a fortuitous event or an act of God, there concurs a corresponding fraud, negligence, delay or violation or contravention in any manner of the tenor of the obligation as provided for in Article 1170 of the Civil Code, which results in loss or damage, the obligor cannot escape liability. - The principle embodied in the act of God doctrine strictly requires that the act must be one occasioned exclusively by the violence of nature and all human agencies are, to be excluded from creating or entering into the cause of the mischief. When the effect, the cause of which is to be considered, is found to be in part the result of the participation of man whether it be from active intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it were, and removed from the rules applicable to the acts of God. (1 Corpus Juris, pp. 1174-1175). Disposition Petition dismissed. SOUTHEASTERN COLLEGE V CA PURISIMA; July 10, 1998 NATURE Petition for review seeking to set aside the Decision promulgated on July 31, 1996, and Resolution dated September 12, 1996 of the Court of Appeals in Juanita de Jesus vda. de Dimaano, et al. vs. Southeastern College, Inc., which reduced the moral damages awarded below from P1,000,000.00 to P200,000.00. The Resolution under attack denied petitioners motion for reconsideration. FACTS - Private respondents are owners of a house at 326 College Road, Pasay City, while petitioner owns a four-storey school building along the same College Road. On October 11, 1989, at about 6:30 in the morning, a powerful typhoon Saling hit Metro Manila. Buffeted by very strong winds, the roof of petitioners building was partly ripped off and blown away, landing on and destroying portions of the roofing of

private respondents house. After the typhoon had passed, an ocular inspection of the destroyed buildings was conducted by a team of engineers headed by the city building official, Engr. Jesus L. Reyna. Pertinent aspects of the latters Reporti[5] dated October 18, 1989 stated, as follows: 5. One of the factors that may have led to this calamitous event is the formation of the buildings in the area and the general direction of the wind. Situated in the peripheral lot is an almost U-shaped formation of 4-storey building. Thus, with the strong winds having a westerly direction, the general formation of the buildings becomes a big funnel-like structure, the one situated along College Road, receiving the heaviest impact of the strong winds. Hence, there are portions of the roofing, those located on both ends of the building, which remained intact after the storm. 6. Another factor and perhaps the most likely reason for the dislodging of the roofings structural trusses is the improper anchorage of the said trusses to the roof beams. The 1/2 diameter steel bars embedded on the concrete roof beams which serve as truss anchorage are not bolted nor nailed to the trusses. Still, there are other steel bars which were not even bent to the trusses, thus, those trusses are not anchored at all to the roof beams. - It then recommended that to avoid any further loss and damage to lives, limbs and property of persons living in the vicinity, the fourth floor of subject school building be declared as a structural hazard. - In their Complaintii[6] before the Regional Trial Court of Pasay City, Branch 117, for damages based on culpa aquiliana, private respondents alleged that the damage to their house rendered the same uninhabitable, forcing them to stay temporarily in others houses. And so they sought to recover from petitioner P117,116.00, as actual damages, P1,000,000.00, as moral damages, P300,000.00, as exemplary damages and P100,000.00, for and as attorneys fees; plus costs. - In its Answer, petitioner averred that subject school building had withstood several devastating typhoons and other calamities in the past, without its roofing or any portion thereof giving way; that it has not been remiss in its responsibility to see to it that said school building, which houses school children, faculty members, and employees, is in tip-top condition; and furthermore, typhoon Saling was an act of God and therefore beyond human control such that petitioner cannot be answerable for the damages wrought thereby, absent any negligence on its part. - The Trial Court and the Court of Appeals gave credence to the ocular inspection made by the city engineer. Thus, this appeal. ISSUES WON the damage on the roof of the building of private respondents resulting from the impact of the falling portions of the school buildings roof ripped off by the strong winds of typhoon Saling, was, within legal contemplation, due to fortuitous event HELD

14

YES - Petitioner cannot be held liable for the damages suffered by the private respondents. This conclusion finds support in Article 1174 of the Civil Code, which provides: Art 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable. - The antecedent of fortuitous event or caso fortuito is found in the Partidas which defines it as an event which takes place by accident and could not have been foreseen.iii[9] Escriche elaborates it as an unexpected event or act of God which could neither be foreseen nor resisted. Civilist Arturo M. Tolentino adds that [f]ortuitous events may be produced by two general causes: (1) by nature, such as earthquakes, storms, floods, epidemics, fires, etc. and (2) by the act of man, such as an armed invasion, attack by bandits, governmental prohibitions, robbery, etc.iv - In order that a fortuitous event may exempt a person from liability, it is necessary that he be free from any previous negligence or misconduct by reason of which the loss may have been occasioned.. An act of God cannot be invoked for the protection of a person who has been guilty of gross negligence in not trying to forestall its possible adverse consequences. When a persons negligence concurs with an act of God in producing damage or injury to another, such person is not exempt from liability by showing that the immediate or proximate cause of the damage or injury was a fortuitous event. When the effect is found to be partly the result of the participation of man whether it be from active intervention, or neglect, or failure to act the whole occurrence is hereby humanized, and removed from the rules applicable to acts of God. - After a thorough study and evaluation of the evidence on record, this Court believes otherwise, notwithstanding the general rule that factual findings by the trial court, especially when affirmed by the appellate court, are binding and conclusive upon this Court. After a careful scrutiny of the records and the pleadings submitted by the parties, we find exception to this rule and hold that the lower courts misappreciated the evidence proffered. - There is no question that a typhoon or storm is a fortuitous event, a natural occurrence which may be foreseen but is unavoidable despite any amount of foresight, diligence or care. In order to be exempt from liability arising from any adverse consequence engendered thereby, there should have been no human participation amounting to a negligent act. In other words, the person seeking exoneration from liability must not be guilty of negligence. Negligence, as commonly understood, is conduct which naturally or reasonably creates undue risk or harm to others. It may be the failure to observe that degree of care, precaution, and vigilance which the circumstances justly demand,v[17] or the omission to do something which a prudent and reasonable man, guided by considerations which ordinarily regulate the conduct of human affairs,

would do. From these premises, we proceed to determine whether petitioner was negligent, such that if it were not, the damage caused to private respondents house could have been avoided? - At the outset, it bears emphasizing that a person claiming damages for the negligence of another has the burden of proving the existence of fault or negligence causative of his injury or loss. The facts constitutive of negligence must be affirmatively established by competent evidence,vi[19] not merely by presumptions and conclusions without basis in fact. Private respondents, in establishing the culpability of petitioner, merely relied on the aforementioned report submitted by a team which made an ocular inspection of petitioners school building after the typhoon. As the term imparts, an ocular inspection is one by means of actual sight or viewing.vii[20] What is visual to the eye though, is not always reflective of the real cause behind. For instance, one who hears a gunshot and then sees a wounded person, cannot always definitely conclude that a third person shot the victim. It could have been selfinflicted or caused accidentally by a stray bullet. The relationship of cause and effect must be clearly shown. - In the present case, other than the said ocular inspection, no investigation was conducted to determine the real cause of the partial unroofing of petitioners school building. Private respondents did not even show that the plans, specifications and design of said school building were deficient and defective. Neither did they prove any substantial deviation from the approved plans and specifications. Nor did they conclusively establish that the construction of such building was basically flawed. - Moreover, the city building official, who has been in the city government service since 1974, admitted in open court that no complaint regarding any defect on the same structure has ever been lodged before his office prior to the institution of the case at bench. It is a matter of judicial notice that typhoons are common occurrences in this country. If subject school buildings roofing was not firmly anchored to its trusses, obviously, it could not have withstood long years and several typhoons even stronger than Saling. - In light of the foregoing, we find no clear and convincing evidence to sustain the judgment of the appellate court. We thus hold that petitioner has not been shown negligent or at fault regarding the construction and maintenance of its school building in question and that typhoon Saling was the proximate cause of the damage suffered by private respondents house.

15

i ii iii iv v vi vii

You might also like