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G. Negligence

1. Concept

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. (Art. 2176, Civil Code)

a. Separate and distinct from civil liability ex delicto

Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant. (Art. 2177, Ibid.)

b. Covers fault or egligence in the performance of obligations

The provisions of Articles 1172 to 1174 are also applicable to a quasi-delict. (Art. 2178, Ibid.)

Cross-referenced articles

Responsibility arising from negligence in the performance of every kind of obligation is also demandable, but such liability may be regulated by the courts, according to the circumstances. (Art. 1172, Ibid.)

The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2, shall apply. (Art. 1173, Ibid.)

If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. (Paragraph 2, Art. 1173, Ibid.)

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. (Art. 1174, Ibid.)

2. Good father of a family or reasonably prudent person

a. GOOD FATHER OF A FAMILY – DEFAULT STANDARD OF CARE

Every person obliged to give something is also obliged to take care of it with the proper diligence of a good father of a family, unless the law or the stipulation of the parties requires another standard of care. (Art. 1163, Ibid.)

If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. (Paragraph 2, Art. 1173, Ibid.)

b. REASONABLY PRUDENT PERSON

The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculations cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct by the circumstances which are before them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take care only when there is something before them to suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm. (PIcart v. Smith, En Banc, G.R. No. L-12219, 15 March 1918)

Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing conduct or guarding against its consequences. (Ibid.)

Verily, foreseeability is the fundamental test of negligence. It 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. (R Transport Corporation v. Yu, G.R. No. 174161, 18 February 2015)

3. Standard of care; emergency rule

a. STANDARD OF CARE

Every person obliged to give something is also obliged to take care of it with the proper diligence of a good father of a family, unless the law or the stipulation of the parties requires another standard of care. (Art. 1163, Civil Code.)

NB: Thus, it is possible for the parties to stipulate a different standard of care than the default – i.e. good father of a family.

b. EMERGENCY RULE

Under the “emergency rule”, an individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence. (Valenzuela v. CA, G.R. No. 115024)

The rationale of this rule is that a person who is confronted with a sudden emergency might have no time for thought, and he must make a prompt decision based largely upon impulse or instinct. Thus, he cannot be held to the same standard of conduct as one who had an opportunity to reflect, even though it later appears that he made the wrong decision. (Engada v. CA, G.R. No. 140698, 20 June 2003)

While the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately weigh a threatening situation is absent, the conduct which is required of an individual in such cases is dictated not exclusively by the suddenness of the event which absolutely negates thoroughful care, but by the over-all nature of the circumstances. (Valenzuela v. CA, supra.)

Applying this principle to a case in which the victims in a vehicular accident swerved to the wrong lane to avoid hitting two children suddenly darting into the street, the driver therein “adopted the best means possible in the given situation” to avoid hitting the children. Using the “emergency rule”, in spite of the fact that the driver was in the wrong lane when the collision with an oncoming truck occurred, he was not guilty of negligence. (Ibid.)

4. Unreasonable risk of harm

a. CREATION OF UNREASONABLE RISK

A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary prudence and may be one which creates a situation involving an unreasonable risk to another because of the expectable action of the other, a third person, an animal, or a force of nature. A negligent act is one from which an ordinary prudent person in the actor’s position, in the same or similar circumstances, would foresee such an appreciable risk of harm to others as to cause him not to do the act or to do it in a more careful manner. (Capili v. Sps. Cardaña, G.R. No. 157906, 02 November 2006)

As a gun store owner, respondent is presumed to be knowledgeable about firearms safety and should have known never to keep a loaded weapon in his store to avoid unreasonable risk of harm or injury to others. Respondent has the duty to ensure that all the guns in his store are not loaded. Firearms should be stored unloaded and separate from ammunition when the firearms are not needed for ready-access defensive use. With more reason, guns accepted by the store for repair should not be loaded precisely because they are defective and may cause an accidental discharge such as what happened in this case. Respondent was clearly negligent when he accepted the gun for repair and placed it inside the drawer without ensuring first that it was not loaded. In the first place, the defective gun should have been stored in a vault. Before accepting the defective gun for repair, respondent should have made sure that it was not loaded to prevent any untoward accident. Indeed, respondent should never accept a firearm from another person, until the cylinder or action is open and he has personally checked that the weapon is completely unloaded. For failing to insure that the gun was not loaded, respondent himself was negligent. Furthermore, it was not shown in this case whether respondent had a License to Repair which authorizes him to repair defective firearms to restore its original composition or enhance or upgrade firearms. (Pacis v. Morales, G.R. No. 169467, 25 February 2010)

5. Evidence

a. PREPONDERANCE OF EVIDENCE

If the action based on negligence is civil in nature, the proof required is preponderance of evidence. (BJDC Construction v. Lanuzo, G.R. No. 161151, 24 March 2014)

If the plaintiff alleged in his complaint that he was damaged because of the negligent acts of the defendant, he has the burden of proving such negligence. It is even presumed that a person takes ordinary care of his concerns. The quantum of proof required is preponderance of evidence. (Huang v. Philippine Hoteliers, Inc., G.R. No. 180440, 05 December 2012)

Preponderance of evidence – is meant that the evidence as a whole adduced by one side is superior to that of the other. It refers to the weight, credit and value of the aggregate evidence on either side and is usually considered to be synonymous with the term “greater weight of evidence” or “greater weight of the credible evidence.” It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto. (BJDC Construction v. Lanuzo, supra.)

6. Presumption of negligence

a. NO PRESUMPTION OF NEGLIGENCE – GENERAL RULE

GENERAL RULE: In quasi- delict, there is no presumption of negligence and it is incumbent upon the injured party to prove the negligence of the defendant, otherwise, the formers complaint will be dismissed, while in breach of contract, negligence is presumed so long as it can be proved that there was breach of the contract and the burden is on the defendant to prove that there was no negligence in the carrying out of the terms of the contract; the rule of respondeat superior is followed. (Huang v. Philippine Hoteliers, Inc., supra.)

It is even presumed that a person takes ordinary care of his concerns. (Ibid.)

EXCEPTIONS:

1)Under Article 2185 of the Civil Code, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. (Filipinas Synthetic Fiber Corporation v. De los Santos, G.R. No. 152033, 16 March 2011)

2) Under Article 2180of the Civil Code, when an injury is caused by the negligence of the employee, there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after selection or both. (Ibid.)

3) Under Article 1756 of the Civil Code, in case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently. (Sulpicio Lines, Inc. v. Sesante, G.R. No. 172682, 27 July 2016)

7. Defenses

a. FORTUITOUS EVENT

No person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable. (Article 1174, Civil Code)

1) Accident

An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. It is “a fortuitous circumstance, event or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual or unexpected by the person to whom it happens.” (Jarco Marketing Corporation v. CA, G.R. No. 129792, 21 December 1999)

Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the person concerned is exercising ordinary care, which is not caused by fault of any person and which could not have been prevented by any means suggested by common prudence.  (Ibid.)

b. ASSUMPTION OF RISK

The doctrine of assumption of risk means that one who voluntarily exposes himself to an obvious, known and appreciated danger assumes the risk of injury that may result therefrom. (Abrogar v. Cosmos Bottling Company, G.R. No. 164749, 15 March 2017)

It rests on the fact that the person injured has consented to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk, and whether the former has exercised proper caution or not is immaterial. (Ibid.)

In other words, it is based on voluntary consent, express or implied, to accept danger of a known and appreciated risk; it may sometimes include acceptance of risk arising from the defendant’s negligence, but one does not ordinarily assume risk of any negligence which he does not know and appreciate. (Ibid.)

1) Elements of assumption of risk

As a defense in negligence cases, the doctrine requires the concurrence of three elements, namely:

1) The plaintiff must know that the risk is present;

2) He must further understand its nature; and

3) His choice to incur it must be free and voluntary. (Ibid.)

2) Similar to Volenti non fit injuria

Assumption of risks is practically the same thing is referred to in very many cases as the defense of volenti non fit injuria. (That to which a person assents is not deemed in law an injury.) (Ibid.)

The doctrine of volenti non fit injuria (“to which a person assents is not esteemed in law as injury”) refers to self-inflicted injury or to the consent to injury which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so. (Nikko Hotel Manila Garden v. Reyes, G.R. No. 154259, 28 February 2005)

c. CONCURRENT NEGLIGENCE

Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not same. No actor’s negligence ceases to be a proximate cause merely because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury. (Ruks Consult and Construction v. Adworld Sign and Advertising Corporation, G.R. No. 204866, 21 January 2015)

d. CONTRIBUTORY NEGLIGENCE

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. (Article 2179, Civil Code)

Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. (Dela Cruz v. Viano, G.R. No. 219649, 26 July 2017)

To hold a person as having contributed to his injuries, it must be shown that he performed an act that brought about his injuries in disregard of warning or signs of an impending danger to health and body. (Ibid.)

1) Causal link, required

To prove contributory negligence, it is still necessary to establish a causal link, although not proximate, between the negligence of the party and the succeeding injury. In a legal sense, negligence is contributory only when it contributes proximately to the injury, and not simply a condition for its occurrence. (Ibid.)

2) Only mitigates liability

The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled to recover damages in full but must bear the consequences of his own negligence. The defendant must thus be held liable only for the damages actually caused by his negligence. The determination of the mitigation of the defendant’s liability varies depending on the circumstances of each case. (Lambert v. Heirs of Castillon, G.R. No. 160709, 23 February 2005)

3) Similar to comparative negligence

Under the doctrine of comparative negligence, if the accident was caused by plaintiff’s own negligence, no liability is imposed upon defendant’s negligence and plaintiff’s negligence merely contributed to his injury, the damages should be apportioned. (Cangco v. Manila Railroad Co., En Banc, G.R. No. L-12191, 14 October 1918)

e. LAST CLEAR CHANCE

The doctrine of last clear chance provides that where both parties are negligent but the negligent act of one is appreciably later in point of time than that of the other, or where it is impossible to determine whose fault or negligence brought about the occurrence of the incident, the one who had the last clear opportunity to avoid the impending harm but failed to do so, is chargeable with the consequences arising therefrom. (Philippine National Railways Corporation v. Vizcara, G.R. No. 190022, 15 February 2012)

Stated differently, the rule is that the antecedent negligence of a person does not preclude recovery of damages caused by the supervening negligence of the latter, who had the last fair chance to prevent the impending harm by the exercise of due diligence. (Ibid.)

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