TORTS & DAMAGES

Collapse of Structures; Last Clear Chance (1990) Mr and Mrs R own a burned-out building, the firewall of which collapsed and destroyed the shop occupied by the family of Mr and Mrs S, which resulted in injuries to said couple and the death of their daughter. Mr and Mrs S had been warned by Mr & Mrs R to vacate the shop in view of its proximity to the weakened wall but the former failed to do so. Mr & Mrs S filed against Mr and Mrs R an action for recovery of damages the former suffered as a result of the collapse of the firewall. In defense, Mr and Mrs R rely on the doctrine of last clear chance alleging that Mr and Mrs S had the last clear chance to avoid the accident if only they heeded the formers warning to vacate the shop, and therefore Mr and Mrs Rs prior negligence should be disregarded. If you were the judge, how would you decide the case? State your reasons.
SUGGESTED ANSWER:

I would decide in favor of Mr & Mrs S. The proprietor of a building or structure is responsible for the damages resulting from its total or partial collapse, if it should be due to the lack of necessary repairs (Art 2190 Civil Code) As regards the defense of last clear chance, the same is not tenable because according to the SC in one case (De Roy v CA L-80718, Jan 29, 1988, 157 S 757) the doctrine of last clear chance is not applicable to instances covered by Art 2190 of the Civil Code.

CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006) Further, in Phoenix Construction, Inc. v. Intermediate Availing of that portion of Section 12 of Article II of the 1987 Constitution which reads; Appellate Court (G.R. L-65295, March 10, 1987. 148 SCRA 353)

the Supreme Court held that the role of the common law "last clear chance" doctrine in relation to Article 2179 of the Civil Code is merely to mitigate damages within the context of contributory negligence. Damages (1994) On January 5, 1992, Nonoy obtained a loan of Pl,000,000.00 from his friend Raffy. The promissory note did not stipulate any payment for Interest. The note was due on January 5, 1993 but before this date the two became political enemies. Nonoy, out of spite, deliberately defaulted in paying the note, thus forcing Raffy to sue him. 1) What actual damages can Raffy recover? 2) Can Raffy ask for moral damages from Nonoy? 3) Can Raffy ask for nominal damages? 4) Can Raffy ask for temperate damages? 5) Can Raffy ask for attorney's fees?
SUGGESTED ANSWER:

The State x xx shall equally protect the life of the mother and the life of the unborn from conception, "xxx" which he claims confers a civil personality on the unborn from the moment of conception.

Boy filed a case for damages against the abortionist, praying therein that the latter be ordered to pay him: (a) P30,000.00 as indemnity for the death of the fetus, (b) P100.000.00 as moral damages for the mental anguish and anxiety he suffered, (c) P50,000.00 as exemplary damages, (d) P20,000.00 as nominal damages, and (e) P25,000.00 as attorney's fees. May actual damages be also recovered? If so, what facts should be alleged and proved?
SUGGESTED ANSWER:

Yes, provided that the pecuniary loss suffered should be substantiated and duly proved. Damages arising from Death of Unborn Child (2003) If a pregnant woman passenger of a bus were to suffer an abortion following a vehicular accident due to the gross negligence of the bus driver, may she and her husband claim damages from the bus company for the death of their unborn child? Explain. 5% No, the spouses cannot recover actual damages in the form of indemnity for the loss of life of the unborn child. This is because the unborn child is not yet considered a person and the law allows indemnity only for loss of life of person. The mother, however may recover damages for the bodily injury she suffered from the loss of the fetus which is considered part of her internal organ. The parents may also recover damages for injuries that are inflicted directly upon them, e.g., moral damages for mental anguish that attended the loss of the unborn child. Since there is gross negligence, exemplary damages can also be recovered. (Gelus v. CA, 2 SCRA 801
[1961]) (2217, 2229,2231)
SUGGESTED ANSWER:

1) Raffy may recover the amount of the promissory note of P1 million, together with interest at the legal rate from the date of judicial or extrajudicial demand. In addition, however, inasmuch as the debtor is in bad faith, he is liable for all damages which may be reasonably attributed to the non-performance of the obligation. (Art. 2201(2). NCC). 2) Yes, under Article 2220, NCC moral damages are recoverable in case of breach of contract where the defendant acted fraudulently or in bad faith. 3) Nominal damages may not be recoverable in this case because Raffy may already be indemnified of his losses with the award of actual and compensatory damages. NOMINAL DAMAGES are adjudicated only in order that a right of the plaintiff, which has been violated or invaded by the defendant may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him. (Article 2221. Civil Code) 4) Raffy may ask for, but would most likely not be awarded temperate damages, for the reason that his actual damages may already be compensated upon proof thereof with the promissory note. TEMPERATE DAMAGES may be awarded only when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty. (Article 2224, Civil Code) 5) Yes, under paragraph 2, Article 2208 of the Civil Code, considering that Nonoy's act or omission has compelled Raffy to litigate to protect his interests. Furthermore. attorneys' fees may be awarded by the court when it is just and equitable. (Article 2208(11) Civil Code). Damages arising from Death of Unborn Child (1991) On her third month of pregnancy, Rosemarie, married to Boy, for reasons known only to her, and without informing Boy, went to the clinic of X, a known abortionist, who for a fee, removed and expelled the fetus from her womb, Boy learned of the abortion six (6) months later.

Death Indemnity (1994) Johnny Maton's conviction for homicide was affirmed by the Court of Appeals and in addition, although the prosecution had not appealed at all. The appellate court increased the indemnity for death from P30,000.00 to P50,000.00. On his appeal to the Supreme Court, among the other things Johnny Maton brought to the high court's attention, was the increase of indemnity imposed by the Court of Appeals despite the clear fact that the People had not appealed from the appellate court's judgment. Is Johnny Maton correct?
SUGGESTED ANSWER:

a) In Abejam v. Court of Appeals, the Supreme Court said that even if the issue of damages were not raised by the appellant in the Court of Appeals but the Court of Appeals in its findings increased the damages, the Supreme Court will not disturb the findings of the Court of Appeals. b) No, the contention of the accused is not correct because upon appeal to the Appellate Court, the court acquired jurisdiction over the entire case, criminal as well as civil. Since the conviction of homicide had been appealed, there

CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

is no finality in the amount of indemnity because the civil liability arising from the crime and the judgment on the crime has not yet become final

c) Yes. Since the civil indemnity is an award in the civil action arising from the criminal offense, the rule that a party cannot be granted affirmative relief unless he himself has appealed should apply. Therefore, it was error for the Court of Appeals to have expanded the indemnity since the judgment on the civil liability had become final. d) No. Courts can review matters not assigned as errors.
(Hydro Resource vs. CA . 204 SCRA 309).

Defense; Due Diligence in Selection (2003) As a result of a collision between the taxicab owned by A and another taxicab owned by B, X, a passenger of the first taxicab, was seriously injured. X later filed a criminal action against both drivers. May both taxicab owners raise the defense of due diligence in the selection and supervision of their drivers to be absolved from liability for damages to X? Reason. 5%
SUGGESTED ANSWER:

A van owned by Orlando and driven by Diego, while negotiating a downhill slope of a city road, suddenly gained speed, obviously beyond the authorized limit in the area, and bumped a car in front of it, causing severed damage to the care and serious injuries to its passengers. Orlando was not in the car at the time of the incident. The car owner and the injured passengers sued Orlando and Diego for damages caused by Diegos negligence. In their defense, Diego claims that the downhill slope caused the van to gain speed and that, as he stepped on the brakes to check the acceleration, the brakes locked, causing the van to go even faster and eventually to hit the car in front of it. Orlando and Diego contend that the sudden malfunction of the vans brake system is a fortuitous even and that, therefore, they are exempt from any liability. Is this contention tenable? Explain. (2%)
SUGGESTED ANSWER:

No. Mechanical defects of a motor vehicle do not constitute fortuitous event, since the presence of such defects would have been readily detected by diligent maintenance check. The failure to maintain the vehicle in safe running condition constitutes negligence. Liability; Airline Company; Non-Performance of an Obligation (2004) DT and MT were prominent members of the frequent travelers club of FX Airlines. In Hongkong, the couple were assigned seats in Business Class for which they had bought tickets. On checking in, however, they were told they were upgraded by computer to First Class for the flight to Manila because the Business Section was overbooked. Both refused to transfer despite better seats, food, beverage and other services in First Class. They said they had guests in Business Class they should attend to. They felt humiliated, embarrassed and vexed, however, when the stewardess allegedly threatened to offload them if they did not avail of the upgrade. Thus they gave in, but during the transfer of luggage DT suffered pain in his arm and wrist. After arrival in Manila, they demanded an apology from FXs management as well as indemnity payment. When none was forthcoming, they sued the airline for a million pesos in damages. Is the airline liable for actual and moral damages? Why or why not? Explain briefly. (5%) FX Airlines committed breach of contract when it upgraded DT and MT, over their objections, to First Class because they had contracted for Business Class passage. However, although there is a breach of contract, DT and MT are entitled to actual damages only for such pecuniary losses suffered by them as a result of such breach. There seems to be no showing that they incurred such pecuniary loss. There is no showing that the pain in DT's arm and wrist resulted directly from the carrier's acts complained of. Hence, they are not entitled to actual damages. Moreover, DT could have avoided the alleged injury by requesting the airline staff to do the luggage transfer as a matter of duty on their part. There is also no basis to award moral damages for such breach of contract because the facts of the problem do not show bad faith or fraud on the part of the airline. (Cathay Pacific v. Vazquez, 399 SCRA 207 [2003]). However, they
SUGGESTED ANSWER:

It depends. If the civil action is based on a quasi-delict the taxicab owners may raise the defense of diligence of a good father of a family in the selection and supervision of the driver; if the action against them is based on culpa contractual or civil liability arising from a crime, they cannot raise the defense. Filing of Separate Civil Action; Need for Reservation (2003) As a result of a collision between the taxicab owned by A and another taxicab owned by B, X, a passenger of the first taxicab, was seriously injured. X later filed a criminal action against both drivers. Is it necessary for X to reserve his right to institute a civil action for damages against both taxicab owners before he can file a civil action for damages against them? Why
SUGGESTED ANSWER:

It depends. If the separate civil action is to recover damages arising from the criminal act, reservation is necessary. If the civil action against the taxicab owners is based on culpa contractual, or on quasi-delict, there is no need for reservation. No, such reservation is not necessary. Under Section 1 of Rule 111 of the 2000 Rules on Criminal Procedure, what is deemed instituted with the criminal action is only the action to recover civil liability arising from the crime or ex delicto. All the other civil actions under Articles 32, 33, 34 and 2176 of the New Civil Code are no longer deemed instituted, and may be filed separately and prosecuted independently even without any reservation in the criminal action (Section 3, Rule 111, Ibid). The failure to make a reservation in the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the New Civil Code (Casupanan v. Laroya GR No. 145391, August 26,
2002).
ALTERNATIVE ANSWER:

Fortuitous Event; Mechanical Defects (2002)

CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

may recover moral damages if the cause of action is based on Article 21 of the Civil Code for the humiliation and embarrassment they felt when the stewardess threatened to offload them if they did not avail of the upgrade.
ALTERNATIVE ANSWER:

If it can be proved that DT's pain in his arm and wrist occasioned by the transfer of luggage was caused by fault or negligence on the part of the airline's stewardess, actual damages may be recovered. The airline may be liable for moral damages pursuant to Art. 2219 (10) if the cause of action is based on Article 21 or an act contrary to morals in view of the humiliation suffered by DT and MT when they were separated from their guests and were threatened to be offloaded. Liability; Airline Company; Non-Performance of an Obligation (2005) Dr. and Mrs. Almeda are prominent citizens of the country and are frequent travelers abroad. In 1996, they booked round-trip business class tickets for the Manila-Hong KongManila route of the Pinoy Airlines, where they are holders of Gold Mabalos Class Frequent Flier cards. On their return flight, Pinoy Airlines upgraded their tickets to first class without their consent and, inspite of their protestations to be allowed to remain in the business class so that they could be with their friends, they were told that the business class was already fully booked, and that they were given priority in upgrading because they are elite members/holders of Gold Mabalos Class cards. Since they were embarrassed at the discussions with the flight attendants, they were forced to take the flight at the first class section apart from their friends who were in the business class. Upon their return to Manila, they demanded a written apology from Pinoy Airlines. When it went unheeded, the couple sued Pinoy Airlines for breach of contract claiming moral and exemplary damages, as well as attorney's fees. Will the action prosper? Give reasons. (5%) Yes, the action will prosper. Article 2201 of the Civil Code entitles the person to recover damages which may be attributed to non-performance of an obligation. In Alitalia Airways v. Court of Appeals (G.R. No. 77011, July 24, 1990) , when an airline issues ticket to a passenger confirmed on a particular flight, a contract of carriage arises and the passenger expects that he would fly on that day. When the airline deliberately overbooked, it took the risk of having to deprive some passengers of their seat in case all of them would show up. For the indignity and inconvenience of being refused the confirmed seat, said passenger is entitled to moral damages. In the given problem, spouses Almeda had a booked roundtrip business class ticket with Pinoy Airlines. When their tickets were upgraded to first class without their consent, Pinoy Airlines breached the contract. As ruled in
Zulueta v. Pan American (G.R. No. L-28589, January 8, 1973),
ALTERNATIVE ANSWER:

The action may or may not prosper. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Although incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act or omission. Moral damages predicated upon a breach of contract of carriage are recoverable only in instances where the carrier is guilty of fraud or bad faith or where the mishap resulted in the death of a passenger. (Cathay Pacific Airways, Ltd. v. Court of Appeals, G.R. No. 60501, March 5, 1993) Where there is no showing that the airline acted fraudulently or in bad faith, liability for damages is limited to the natural and probable consequences of the breach of the contract of carriage which the parties had foreseen or could have reasonably foreseen. In such a case the liability does not include moral and exemplary damages. In the instant case, if the involuntary upgrading of the Almedas' seat accommodation was not attended by fraud or bad faith, the award of moral damages has no leg to stand on. Thus, spouses would not also be entitled to exemplary damages. It is a requisite in the grant of exemplary damages that the act of the offender must be accompanied by bad faith or done in wanton, fraudulent or malevolent manner.
(Morris v. Court of Appeals, G.R. No. 127957, February 21, 2001)

Moreover, to be entitled thereto, the claimant must first establish his right to moral, temperate, or compensatory damages. (Art. 2234, Civil Code) Since the Almedas are not entitled to any of these damages, the award for exemplary damages has no legal basis. Where the awards for moral and exemplary damages are eliminated, so must the award for attorney's fees be eliminated. (Orosa v. Court of Appeals, G.R.
No. 111080, April 5, 2000; Morris v. Court of Appeals, G.R. No. 127957, February 21, 2001) The most that can be adjudged in

their favor for Pinoy Airlines' breach of contract is an award for nominal damages under Article 2221 of the Civil Code.
(Cathay Pacific Airways v. Sps. Daniel & Maria Luisa Vasquez, G.R. No. 150843, March 14, 2003)

However, if spouses Almeda could prove that there was bad faith on the part of Pinoy Airlines when it breached the contract of carriage, it could be liable for moral, exemplary as well as attorney's fees. Liability; Employer; Damage caused by Employees (1997) a) When would an employer's liability for damage, caused by an employee in the performance of his assigned tasks, be primary and when would it be subsidiary in nature? b) Would the defense of due diligence in the selection and supervision of the employee be available to the employer in both instances? SUGGESTED ANSWER:: (a) The employer's liability for damage based on culpa aquiliana under Art, 2176 and 2180 of the Civil Code is primary; while that under Art. 103 of the Revised Penal Code is subsidiary.

in case of overbooking, airline is in bad faith. Therefore, spouses Almeda are entitled to damages.
ALTERNATIVE ANSWER:

CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

(b) The defense of diligence in the selection and supervision of the employee under Article 2180 of the Civil Code is available only to those primarily liable thereunder, but not to those subsidiarily liable under Article 103 of the Revised Penal Code (Yumul vs. Juliano, 72 Phil. 94).

the vehicle at the time of the accident, be held solidarily liable with his driver, John? (5%)
SUGGESTED ANSWER:

Liability; owner who was in the vehicle (1996) Marcial, who does not know how to drive, has always been driven by Ben, his driver of ten years whom he had chosen carefully and has never figured in a vehicular mishap. One day, Marcial was riding at the back seat of his Mercedes Benz being driven along EDSA by Ben. Absorbed in reading a book, Marcial did not notice that they were approaching the corner of Quezon Avenue, when the traffic light had just turned yellow. Ben suddenly stepped on the gas to cross the intersection before the traffic light could turn red. But, too late. Midway in the intersection, the traffic light changed, and a Jeepney full of passengers suddenly crossed the car's path. A collision between the two vehicles was inevitable. As a result, several jeepney passengers were seriously injured. A suit for damages based on culpa aquiliana was filed against Marcial and Ben, seeking to hold them jointly and severally liable for such injuries. May Marcial be held liable? Explain. Marcial may not be liable because under Art. 2184, NCC, the owner who is in the vehicle is not liable with the driver if by the exercise of due diligence he could have prevented the injury. The law does not require the owner to supervise the driver every minute that he was driving. Only when through his negligence, the owner has lost an opportunity to prevent the accident would he be liable (Caedo v. Ytt Khe Thai, 26
SCRA 410 citing Chapman v. Underwood and Manlangit v. Mauler, 250 SCRA 560). In this case, the fact that the owner
SUGGESTED ANSWER:

Yes. Art may be held solidary liable with John, if it was proven that the former could have prevented the misfortune with the use of due diligence. Article 2184 of the Civil Code states: "In motor mishaps, the owner is solidary liable with his driver, if the former, who was in the vehicle, could have, by the use of due diligence, prevented the misfortune, x x x" 1. It depends. The Supreme Court in Chapman vs, Underwood (27 Phil 374), held: "An owner who sits in his automobile, or other vehicle, and permits his driver to continue in a violation of law by the performance of negligent acts, after he has had a reasonable opportunity to observe them and to direct that the driver cease therefrom, becomes himself responsible for such acts, x x x On the other hand, if the driver, by a sudden act of negligence, and without the owner having a reasonable opportunity to prevent the act or its continuance, injures a person or violates the criminal law, the owner of the automobile, although present therein at the time the act was committed is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length of time that the owner, by his acquiescence, makes his driver's act his own." Liability; owner who was in the vehicle (2002) Does the presence of the owner inside the vehicle causing damage to a third party affect his liability for his drivers negligence? Explain (2%)
SUGGESTED ANSWER: ALTERNATIVE ANSWER:

was absorbed in reading a book does not conclusively show that he lost the opportunity to prevent the accident through his negligence.
ALTERNATIVE ANSWER:

In motor vehicle mishaps, the owner is made solidarily liable with his driver if he (the owner) was in the vehicle and could have, by the use of due diligence, prevented the mishap.
(Caedo v. Yu Khe Thai, 26 SCRA 410 [1968]).

Yes, Marcial should be held liable. Art. 2164. NCC makes an owner of a motor vehicle solidarily liable with the driver if, being in the vehicle at the time of the mishap, he could have prevented it by the exercise of due diligence. The traffic conditions along EDSA at any time of day or night are such as to require the observance of utmost care and total alertness in view of the large number of vehicles running at great speed. Marcial was negligent in that he rendered himself oblivious to the traffic hazards by reading a book instead of focusing his attention on the road and supervising the manner in which his car was being driven. Thus he failed to prevent his driver from attempting to beat the traffic light at the junction of Quezon Avenue and EDSA, which Marcial, without being a driver himself could have easily perceived as a reckless course of conduct. Liability; owner who was in the vehicle (1998) A Gallant driven by John and owned by Art, and a Corolla driven by its owner, Gina, collided somewhere along Adriatico Street. As a result of the accident, Gina had a concussion. Subsequently. Gina brought an action for damages against John and Art. There is no doubt that the collision is due to John's negligence. Can Art, who was in

Moral Damages & Atty Fees (2002) Ortillo contracts Fabricato, Inc. to supply and install tile materials in a building he is donating to his province. Ortillo pays 50% of the contract price as per agreement. It is also agreed that the balance would be payable periodically after every 10% performance until completed. After performing about 93% of the contract, for which it has been paid an additional 40% as per agreement, Fabricato, Inc. did not complete the project due to its sudden cessation of operations. Instead, Fabricato, Inc. demands payment of the last 10% of the contract despite its non-completion of the project. Ortillo refuses to pay, invoking the stipulation that payment of the last amount 10% shall be upon completion. Fabricato, Inc. brings suit for the entire 10%. Plus damages, Ortillo counters with claims for (a) moral damages for Fabricato, Inc.s unfounded suit which has damaged his reputation as a philanthropist and respect businessman in his community, and (b) attorneys fees. A. Does Ortillo have a legal basis for his claim for moral damages? (2%) B. How about his claim for attorneys fees, having hired a lawyer to defend him? (3%)
SUGGESTED ANSWER:

A. There is no legal basis to Ortillos claim for moral damages. It does not fall under the coverage of Article 2219 of the New Civil Code. B. Ortillo is entitled to attorneys fees because Fabricatos complaint is a case of malicious prosecution or a clearly unfounded civil action. (Art. 2208 [4] and [11], NCC).

CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

a) When a 7-year old boy injures his playmate while playing with his father's rifle. Explain. (2%) The parents of the 7-year old boy who caused injury to his playmate are liable under Article 219 of the Family Code, in relation to Article 2180 of the Civil Code since they exercise parental authority over the person of the boy. (Tamargo v.
Court of Appeals, G.R. No. 85044, June 3, 1992; Elcano v. Hill, G.R. No. L-24803, May 26, 1977)
SUGGESTED ANSWER:

Moral Damages; Non-Recovery Thereof (2006) Under Article 2219 of the Civil Code, moral damages may be recovered in the cases specified therein several of which are enumerated below. Choose the case wherein you cannot recover moral damages. Explain. (2.5%) a) A criminal offense resulting in physical injuries b) Quasi-delicts causing physical injuries c) Immorality or dishonesty d) Illegal search e) Malicious prosecution SUGGESTED ANSWER: Immorality and dishonesty, per se, are not among those cases enumerated in Article 2219 which can be the basis of an action for moral damages. The law specifically mentions adultery or concubinage, etc. but not any and every immoral act.

b) When a domestic helper, while haggling for a lower price with a fish vendor in the course of buying foodstuffs for her employer's family, slaps the fish vendor, causing her to fall and sustain injuries. Explain. (2%)
SUGGESTED ANSWER:

Employer of the domestic helper who slapped a fish vendor. Under Article 2180, par. 5 of the Civil Code, "employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry." c) A carpenter in a construction company accidentally hits the right foot of his co-worker with a hammer. Explain. (2%)

Quasi-Delict (1992) As the result of a collision between a public service passenger bus and a cargo truck owned by D, X sustained physical injuries and Y died. Both X and Y were passengers of the bus. Both drivers were at fault, and so X and Z, the only heir and legitimate child of the deceased Y, sued the owners of both vehicles. a) May the owner of the bus raise the defense of having exercised the diligence of a good father of a family? b) May D raise the same defense? c) May X claim moral damages from both defendants? d) May Z claim moral damages from both defendants? Give reasons for all your answers,
SUGGESTED ANSWER:

SUGGESTED ANSWER:

The owner of the construction company. Article 2180, paragraph 4 states that "the owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions." d) A 15-year old high school student stabs his classmate who is his rival for a girl while they were going out of the classroom after their last class. Explain. (2%)
SUGGESTED ANSWER:

(a) No. The owner of the bus cannot raise the defense because the carrier's liability is based on breach of contract (b) Yes. D can raise the defense because his liability is based on a quasi-delict. (c) Because X suffered physical injuries, X can claim moral damages against D, but as against the owner of the bus. X can claim moral damages only if X proves reckless negligence of the carrier amounting to fraud. (d) Z can claim moral damages against both defendants because the rules on damages arising from death due to a quasi-delict are also applicable to death of a passenger caused by breach of contract by a common carrier (Arts. 1755. 1756, 1764, 2206 and 2219. Civil Code). Quasi-Delict (2005) Under the law on quasi-delict, aside from the persons who caused injury to persons, who else are liable under the following circumstances:

The school, teacher and administrator as they exercise special parental authority. (Art. 2180, par. 7 in relation to Art. 218 and Art. 219 of the Family Code) e) What defense, if any, is available to them? (2%)
SUGGESTED ANSWER:

The defense that might be available to them is the observance of a good father of the family to prevent the damage. (Last par., Art. 2180, Civil Code) Quasi-Delict; Acts contrary to morals (1996) Rosa was leasing an apartment in the city. Because of the Rent Control Law, her landlord could not increase the rental as much as he wanted to, nor terminate her lease as long as she was paying her rent. In order to force her to leave the premises, the landlord stopped making repairs on the apartment, and caused the water and electricity services to be disconnected. The difficulty of living without electricity and running water resulted in Rosa's suffering a nervous breakdown. She sued the landlord for actual and moral damages. Will the action prosper? Explain.
SUGGESTED ANSWER:

CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

Yes, based on quasi-delict under the human relations provisions of the New Civil Code (Articles 19, 20 and 21) because the act committed by the lessor is contrary to morals. Moral damages are recoverable under Article 2219 (10) in relation to Article 21. Although the action is based on quasi-delict and not on contract, actual damages may be recovered if the lessee is able to prove the losses and expenses she suffered.
ALTERNATIVE ANSWERS:

for quasi-delict may nonetheless prosper. The Supreme Court has consistently ruled that the act that breaks the contract may also be a tort. There is a fiduciary relationship between the bank and the depositor, imposing utmost diligence in managing the accounts of the depositor. The dishonor of the check adversely affected the credit standing of Tony, hence, he is entitled to damages (Singson v. BPI,

a) Yes, based on breach of contract. The lessor has the obligation to undertake repairs to make the apartment habitable and to maintain the lessee in the peaceful and adequate enjoyment of the lease for the entire duration of the contract (Article 1654. NCC). Since there was willful breach of contract by the lessor, the lessee is entitled to moral damages under Article 3220, NCC. She is also entitled to actual damages, e. g. loss of income, medical expenses, etc., which she can prove at the trial. b) Yes, based on contract and/or on tort. The lessor willfully breached his obligations under Article 1654. NCC, hence, he is liable for breach of contract. For such breach, the lessee may recover moral damages under Art. 2220 of the NCC, and actual damages that she may have suffered on account thereof. And since the conduct of the lessor was contrary to morals, he may also be held liable for quasi-delict. The lessee may recover moral damages under Article 2219 (10) in relation to Article 21, and all actual damages which she may have suffered by reason of such conduct under Articles 9, 20 and 21. c) Yes, the action should prosper for both actual and moral damages. In fact, even exemplary damages and attorney's fees can be claimed by Rosa, on the authority of Magbanua vs. IAC (137 SCRA 328), considering that, as given, the lessor's willful and illegal act of disconnecting the water and electric services resulted in Rosa's suffering a nervous breakdown. Art. 20 NCC and Art, 21, NCC authorize the award of damages for such willful and illegal conduct. Quasi-Delict; Mismanagement of Depositors Account (2006) Tony bought a Ford Expedition from a car dealer in Muntinlupa City. As payment, Tony issued a check drawn against his current account with Premium Bank. Since he has a good reputation, the car dealer allowed him to immediately drive home the vehicle merely on his assurance that his check is sufficiently funded. When the car dealer deposited the check, it was dishonored on the ground of "Account Closed." After an investigation, it was found that an employee of the bank misplaced Tony's account ledger. Thus, the bank erroneously assumed that his account no longer exists. Later it turned out that Tony's account has more than sufficient funds to cover the check. The dealer however, immediately filed an action for recovery of possession of the vehicle against Tony for which he was terribly humiliated and embarrassed. Does Tony have a cause of action against Premium Bank? Explain. (5%)
SUGGESTED ANSWER: Yes, Tony may file an action against Premium Bank for damages under Art. 2176. Even if there exists a contractual relationship between Tony and Premium Bank, an action

G.R. No. L-24932, June 27, 1968; American Express International, Inc. v. IAC, G.R. No. 72383, November 9, 1988; Consolidated Bank and Trust v. CA, G.R. No. L-70766 November 9,1998).

Vicarious Liability (1991) Romano was bumped by a minivan owned by the Solomon School of Practical Arts (SSPA). The minivan was driven by Peter, a student assistant whose assignment was to clean the school passageways daily one hour before and one hour after regular classes, in exchange for free tuition. Peter was able to drive the school vehicle after persuading the regular driver, Paul, to turn over the wheel to him (Peter). Romano suffered serious physical injuries. The accident happened at night when only one headlight of the vehicle was functioning and Peter only had a student driver's permit. As a consequence, Peter was convicted in the criminal case. Thereafter, Romano sued for damages against Peter and SSPA. a) Will the action for damages against Peter and SSPA prosper? b) Will your answer be the same if, Paul, the regular driver, was impleaded as party defendant for allowing Peter to drive the minivan without a regular driver's license. c) Is the exercise of due diligence in the selection and supervision of Peter and Paul a material issue to be resolved in this case? A. Yes. It will prosper (Art, 2180) because at the time he drove the vehicle, he was not performing his assigned tasks as provided for by Art. 2180. With respect to SSPA, it is not liable for the acts of Peter because the latter was not an employee as held by Supreme Court in Filamer Christian Institute vs. CA. (190 SCRA 485). Peter belongs to a special category of students who render service to the school in exchange for free tuition fees. B. I would maintain the same answer because the incident did not occur while the employee was in the performance of his duty as such employee. The incident occurred at night time, and in any case, there was no indication in the problem that he was performing his duties as a driver. C. In the case of Peter, if he were to be considered as employee, the exercise of due diligence in the selection and supervision of peter would not be a material issue since the conviction of Peter would result in a subsidiary liability where the defense would not be available by the employer. In the case of Paul, since the basis of subsidiary liability is the pater familias rule under Art. 2180, the defense of selection and supervision of the employee would be a valid defense.
ALTERNATIVE ANSWER: SUGGESTED ANSWER:

CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

C. In the case of Peter, if he were to be considered an employee, the exercise of due diligence in the selection and supervision of Peter would not be a material issue since the conviction of Peter would result in a subsidiary liability where the defense would not be available by the employer.

The doctrine of VICARIOUS LIABILITY is that which renders a person liable for the negligence of others for whose acts or omission the law makes him responsible on the theory that they are under his control and supervision. Vicarious Liability (2004) OJ was employed as professional driver of MM Transit bus owned by Mr. BT. In the course of his work, OJ hit a pedestrian who was seriously injured and later died in the hospital as a result of the accident. The victims heirs sued the driver and the owner of the bus for damages. Is there a presumption in this case that Mr. BT, the owner, had been negligent? If so, is the presumption absolute or not? Explain. (5%)
SUGGESTED ANSWER:

In the case of Paul, since he was in the performance of his work at the time the incident occurred, the school may be held subsidiarily liable not because of the conviction of Peter, but because of the negligence of Paul under Art. 2180. Vicarious Liability (2001) After working overtime up to midnight, Alberto, an executive of an insurance company drove a company vehicle to a favorite Videoke bar where he had some drinks and sang some songs with friends to "unwind". At 2:00 a.m., he drove home, but in doing so, he bumped a tricycle, resulting in the death of its driver. May the insurance company be held liable for the negligent act of Alberto? Why?
SUGGESTED ANSWER:

Yes, there is a presumption of negligence on the part of the employer. However, such presumption is rebuttable. The liability of the employer shall cease when they prove that they observed the diligence of a good father of a family to prevent damage (Article 2180, Civil Code). When the employee causes damage due to his own negligence while performing his own duties, there arises the juris tantum presumption that the employer is negligent, rebuttable only by proof of observance of the diligence of a good father of a family (Metro Manila Transit v. CA, 223 SCRA 521 [1993];
Delsan Transport Lines v, C&tA Construction, 412 SCRA 524 2003).

The insurance company is not liable because when the accident occurred, Alberto was not acting within the assigned tasks of his employment. It is true that under Art. 2180 (par. 5), employers are liable for damages caused by their employees who were acting within the scope of their assigned tasks. However, the mere fact that Alberto was using a service vehicle of the employer at the time of the injurious accident does not necessarily mean that he was operating the vehicle within the scope of his employment. In Castilex Industrial Corp. v. Vasquez Jr (321 SCRA393 [1999]). the Supreme Court held that notwithstanding the fact that the employee did some overtime work for the company, the former was, nevertheless, engaged in his own affairs or carrying out a personal purpose when he went to a restaurant at 2:00 a.m. after coming out from work. The time of the accident (also 2:00 a. m.) was outside normal working hours.
ALTERNATIVE ANSWER:

Likewise, if the driver is charged and convicted in a criminal case for criminal negligence, BT is subsidiarily liable for the damages arising from the criminal act. Vicarious Liability (2006) Arturo sold his Pajero to Benjamin for P1 Million. Benjamin took the vehicle but did not register the sale with the Land Transportation Office. He allowed his son Carlos, a minor who did not have a driver's license, to drive the car to buy pan de sal in a bakery. On the way, Carlos driving in a reckless manner, sideswiped Dennis, then riding a bicycle. As a result, he suffered serious physical injuries. Dennis filed a criminal complaint against Carlos for reckless imprudence resulting in serious physical injuries.
1. Can Dennis file an independent civil action against Carlos and his father Benjamin for damages based on quasi-delict? Explain. (2,5%)
SUGGESTED ANSWER:

The insurance company is liable if Alberto was negligent in the operation of the car and the car was assigned to him for the benefit of the insurance company, and even though he was not within the scope of his assigned tasks when the accident happened. In one case decided by the Supreme Court, where an executive of a pharmaceutical company was given the use of a company car, and after office hours, the executive made personal use of the car and met an accident, the employer was also made liable under Art. 2180 of the Civil Code for the injury caused by the negligent operation of the car by the executive, on the ground that the car which caused the injury was assigned to the executive by the employer for the prestige of the company. The insurance company was held liable even though the employee was not performing within the scope of his assigned tasks when the accident happened [Valenzuela v. CA, 253 SCRA 3O3 (1996)]. Vicarious Liability (2002) Explain the concept of vicarious liability in quasi-delicts. (1%)
SUGGESTED ANSWER:

Yes, Dennis can file an independent civil action against Carlos and his father for damages based on quasi-delict there being an act or omission causing damage to another without contractual obligation. Under Section 1 of Rule 111 of the 2000 Rules on Criminal Procedure, what is deemed instituted with the criminal action is only the action to recover civil liability arising from the act or omission punished by law. An action based on quasi-delict is no longer deemed instituted and may be filed separately [Section 3, Rule 111, Rules of Criminal Procedure].

2. Assuming Dennis' action is tenable, can Benjamin raise the defense that he is not liable because the vehicle is not registered in his name? Explain. (2.5%)

CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

Benjamin cannot raise the

called oncomouse in Manila? What will be your advice to

defense that the vehicle is not registered in his name. His liability, vicarious in character, is based on Article 2180 because he is the The motion should be denied. Under the Public Service father of a minor who caused damage due to negligence. While Law, the registered owner of a public utility is liable for the the suit will prosper against the registered owner, it is the actual owner of the private vehicle who is ultimately liable (See Duavit v.damages suffered by third persons through the use of such CA, G.R. No. L-29759, May 18, 1989). The purpose of carpublic utility. Hence, the cause of action is based in law, the registration is to reduce difficulty in identifying the party liable in Public Service Law. case of accidents
(Villanueva v. Domingo, G.R. No. 144274, September 14, 2004).

Vicarious Liability; Public Utility (2000) Silvestre leased a car from Avis-Rent-A-Car Co. at the Mactan International Airport. No sooner had he driven the car outside the airport when, due to his negligence, he bumped an FX taxi owned and driven by Victor, causing damage to the latter in the amount of P100,000.00. Victor filed an action for damages against both Silvestre and Avis, based on quasi-delict. Avis filed a motion to dismiss the complaint against it on the ground of failure to state a cause of action. Resolve the motion. (3%)
SUGGESTED ANSWER:

The motion to dismiss should be granted, AVIS is not the employer of Silvestre; hence, there is no right of action against AVIS under Article 2180 of the Civil Code. Not being the employer, AVIS has no duty to supervise Silvestre. Neither has AVIS the duty to observe due diligence in the selection of its customers. Besides, it was given in the problem that the cause of the accident was the negligence of Silvestre.
ALTERNATIVE ANSWER: