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)]

Of Pedicabs and Tricycles

Anybody who's driving in Metro Manila today has probably experienced the agony of being behind a pedicab or tricycle in National Roads. Aside from the fact that they slow down the vehicles, they have no shame at being on the center of the road and, worse of all, counterflowing. All these are illegal. Pedicabs and tricycles are banned from major roads. So why are they there? Better ask the local government officials who are sleeping on the job or deliberately looking the other way around.

So the driver honks at them to get out of the way. It's the only thing he has left. Taking your grievance to the local government is too demanding at the moment. And what does the driver get? A loud, crispy, and juicy curse from the pedicab/tricycle driver. For a moment you'd think the driver was the wrong party.

I am not against pedicab/tricycle drivers per se. I also understand that they have to make a living. But it should not be done at the expense of other persons. Moreover, earning a living should be within the limits provided by law.

After the successful campaign against illegal sirens and blinkers, I hope President Aquino's next policy directive is to implement the ban of pedicabs/tricycles in major roads. That would have a huge impact in the unbearable traffic situtation in the metro.

Lawyer in TV

Two days ago, I accidentally tuned in to DZMM's Teleradyo program "Usapang de Kampanilya", if I am not mistaken. The setup of the program is such that there is a lawyer who answers the legal queries asked by the listeners and viewers. One viewer asked whether both contracting parties in a marriage should be members of the same religion so that the solemnizing officer, whether a rabbi, priest, or imam, can have authority to solemnize the marriage. The lawyer replied in the affirmative. He said that in order for a priest, rabbi, imam or minister of any church or religious sect to validly solemnize the marriage both contracting parties must belong to the solemnizing officer's church or religious sect.

My stock knowledge told me he gave the wrong answer. Although we took up Persons and Family Relations almost two years ago, I can still remember most of its provisions. I believed at that time that the correct answer is that the marriage is still valid as long as at least one of the contracting parties belongs to the solemnizing officer's church or religious sect.

After consulting the pertinent provision in the Family Code, I found out, happily, that my guess was correct. The Family Code provides that:

Art. 7. Marriage may be solemnized by:

xxx xxx

(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer's church or religious sect;

xxx xxx

So, for whoever asked that question, I hope you get to read this blog so you can still get married. And for the lawyer - be careful next time especially since many people are watching and listening.

The First Ever SONA I Watched from Beginning to End

The Ateneo Professional School’s basement 1 level was unusually packed today, July 26, 2010. Students and employees gathered to watch President Benigno Aquino’s first ever State of the Nation Address (“SONA”). Two days before, many people also gathered at the same spot to watch the basketball game between Ateneo and La Salle. However, the crowd that watched the game pales in comparison to the crowd gathered today. I can’t remember a time when people actually took time to watch Gloria Arroyo’s SONA.

Truth be told, I’m not in any position to compare the substance of President Aquino’s SONA with President Arroyo’s. I didn’t have the time, patience, and tolerance to watch Ms. Arroyo’s SONA in the past nine years, more so during the last five. In contrast, I was eager to watch this one. By the fact alone that they spent time to watch Aquino’s SONA, it seems many people, at least law students and employees in Ateneo, shared my sentiment. Or maybe they were also required to write reaction papers too. Anyway, what matters is that I had an opportunity to watch the whole SONA itself and not merely rely on news reports in the evening.

First thing I noticed about Pres. Aquino’s speech is the use of the Filipino language. I think this was a good strategy to make the SONA more meaningful to ordinary people. In contrast, Ms. Arroyo’s use of the English language limited the number of people who could understand what she was talking about. It was an elitist’s way of doing things. Considering that the masses comprise majority of the population, it is important that the country’s leaders communicate with them in a language they can understand. This way ordinary people will know the problems facing the country and hopefully be able to contribute solutions, even in the smallest possible way.

President Noynoy Aquino promised to tell the true state of the nation. And he did, without hesitation. Was it shocking? I think so but not so much because people already knew that Arroyo’s administration was corrupt. They were just fed the details and extent of the corruption.

The irregular transactions involved rice, water, electricity, and disbursement of the calamity fund, among others. These are only some of the garbage that the Aquino administration inherited from the previous administration. There are more problems that were not mentioned. Suffice it to say that Pres. Aquino has a lot of cleaning to do. If the situation is likened to the law on succession, the decedent (Ms. Arroyo) left more liabilities than assets to her heir (Mr. Aquino). Sadly, Mr. Aquino cannot invoke the defense that an heir is liable only to the extent of his share in the estate of the decedent. He has to face and solve the problems left by Gloria Arroyo before the country can move forward.

Defiance bordering on arrogance

This country is going down further into the pits. It's a sorry spectacle. The military's defiance of the Supreme Court's writ of habeas corpus order is a serious blow to the integrity of the judiciary. It's a slap in the face. Disrespect of the highest order. It's a dangerous precedent indeed, as described by Associate Justice Normandie Pizarro. The orders of the high court would lose its teeth and people would get the idea that they are mere scraps of paper. Why is this happening? It's simple actually. The highest official of our land is setting the example so her subordinates have the guts to do so too. No president after the people power revolution has tested the limits of the constitution and got away with it except this evil one currently in office. If this trend continues, the Supreme Court would no longer be the court of last resort. People will be holding guns instead of pleadings, and they will flock to the mountains instead of Padre Faura. The promulgation will be based on the number of bodies lying on the ground.

Let's just hope the next president (if ever the elections pushes through) will reverse the cancer Arroyo inflicted on our country. Just like how Obama is healing the deep wounds left by George Bush. Let's hope and pray.