Torts and Damages Midterms Reviewer

Torts**:

Quasi-delict
1. An act or omission constituting fault or negligence;
2. Damage caused by the said act or omission
3. The causal relation between the damage and the act or omission

Criminal negligence:
1. The offender does or fails to do an act;
2. The doing or thr failure to do that act is voluntary;
3. It be without malice
4. Material damage results from the reckless imprudence
5. There is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place.

Negligence - omission of that degree of diligence which is required by the nature of the obligation and corresponding to the circumstances of persons, time and place (art. 1174)

Picart test - 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?

Foreseeability - could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued?

Emergency rule - one who suddenly finds himself in a place of danger and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.

When a person holds himself out as being competent to do things requiring professional skills, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempted to do.

Bases for holding insane person liable:
1. Where one of two persons must suffer a loss it should be borne by the one who occasioned it;
2. To induce those interested in the estate of the insane person to restrain and control him;
3. The fear that an insanity defense would lead to false claims of insanity to avoid liability

Statute or ordinance becomes standard of care or conduct to which the reasonably prudent person is held.

Acts the performance of which has not proved destructive or injurious and which have, therefore, been acquiesced in by society for so long a time that they have ripened into custom, can not be held to be themselves unreasonable or imprudent. (p. 130)

Gross negligence - want of even slight care and diligence; implying conscious indifference to consequences

Plaintiff who was damaged has the burden of proving negligence of defendant.

Presumptions - if violated traffic regulation or reckless driver within the next preceding two months; if at the time of mishap person was violating any traffic regulation; if death or injury results from his possession of dangerous weapons or substances

Res ipsa loquitur
1. The accident is a kind which ordinarily does not occur in the absence of someone's negligence
2. Caused by an instrumentality within the exclusive control of the defendant or defendants;
3. Possibility of contributing conduct which would make the plaintiff responsible is eliminated

Rationale: the very nature of certain types of occurences 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
Third requisite applies only to non-contractual tort since obviously the presumption of negligence immediately attaches by a failure of the covenant or its tenor. But res ipsa loquitur applicable to both contractual and non-contractual relations.

One who was hurt while trying to rescue another who was injured through negligence may recover damages.

Conduct which might otherwise be contributory negligence may not be so considered where a person is injured in attempting to save others from imminent danger of personal injury or death.

Licensee - one who enters another's premises either without invitation or purposes not connected with business conducted on the premises but with permission or tolerance.
Invitee - one who is at a place upon invitation

Attractive nuisance doctrine - an owner is liable if he maintains in his premises dangerous instrumentalities or appliances of a character likely to lure children in play and he fails to exercise ordinary care to prevent children of tender age from playing therewith or resorting thereto.

**[Extracted from Timoteo Aquino, Torts and Damages 2nd Ed. (2005)]