4.

CONTRIBUTORY NEGLIGENCE

ARTICLE 2179. 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. (n)

Article 2179 is a new provision in the sense that the Old Civil Code or the Spanish Civil Code did
not provide such a rule.

In England, the contributory negligence of the plaintiff was a complete defense to the claim for
damages. The common law rule of contributory negligence prevented any recovery at all by the plaintiff
who was also negligent, even if the plaintiffs negligence was relatively minor as compared with the
wrongful act or omission of the defendant.

The Philippines, according to the Civil Code, does not recognize contributory negligence as a
complete bar to recovery. Ever since the passage of the New Civil Code on August 30, 1950, the rules on
contributory negligence had been consistently as follows:

A. IF THE CONTRIBUTORY NEGLIGENCE OF THE PLAINTIFF WAS THE PROXIMATE CAUSE

OF THE ACCIDENT, THERE CAN BE NO RECOVERY (Taylor versus Manila Electric Co., 16
Phil. 8).

Facts: MERALCO left dynamite blasting caps in the premises of its plant. Two boys, 15
and 12, entered the plant, saw the blasting caps and brought the same home. They experimented
on the blasting caps at home. They opened the cap and saw that it was filled with a yellowish
substance. They took a match and lit the contents. This caused an explosion which led to
injuries to the boys. They sued MERALCO.

Held: The immediate cause of the explosion, the accident which resulted to plaintiffs
injury, was his own act in putting a match to the contents of the cap. He cannot recover.

B. IF THE PROXIMATE CAUSE WAS STILL THE NEGLIGENCE OF THE DEFENDANT, THE
PLAINTIFF CAN STILL RECOVER DAMAGES BUT THE AMOUNT OF DAMAGES WILL BE
MITIGATED DUE TO HIS CONTRIBUTORY NEGLIGENCE (Rakes versus Atlantic and Pacific,
7 Phil. 359).

Phoenix Construction v. IAC

March 10, 1987

Facts: Plaintiff was on the way home after a party where he drank. His headlights suddenly failed
so he had to switch on his high beam. He saw a Ford dump truck 2 & meters away parked askew and
blocking traffic. There was no early warning device. As he was running at a fast speed, he was not able
to avoid collision and suffered physical injuries.

Plaintiff sued Phoenix, the owner of the dump truck. Phoenix countered that the negligence of the
Plaintiff in driving fast under the influence of liquor and without head lights was the proximate cause of the
accident.
Held: The conclusion we draw from the factual circumstances outlined above is that private
respondent Dionisio was negligent the night of the accident. He was hurrying home that night and driving
faster than he should have been. Worse, he extinguished his headlights at or near the intersection of
General Lacuna and General Santos Streets and thus did not see the dump truck that was parked askew
and sticking out onto the road lane.
 Nonetheless, the legal and proximate cause of the accident and of Dionisio's injuries was the
wrongful or negligent manner in which the dump truck was parked in other words, the negligence of
petitioner Carbonel. That there was a reasonable relationship between petitioner Carbonel's negligence
on the one hand and the accident and respondent's injuries on the other hand, is quite clear. Put in a
slightly different manner, the collision of Dionisio's car with the dump truck was a natural and foreseeable
consequence of the truck driver's negligence.

The truck driver's negligence far from being a "passive and static condition" was rather an
indispensable and efficient cause. The collision between the dump truck and the private respondent's car
would in all probability not have occurred had the dump truck not been parked askew without any warning
lights or reflector devices. The improper parking of the dump truck created an unreasonable risk of injury
for anyone driving down General Lacuna Street and for having so created this risk, the truck driver must
be held responsible. In our view, Dionisio's negligence, although later in point of time than the truck
driver's negligence and therefore closer to the accident, was not an efficient intervening or independent
cause.

Dionisio's negligence was "only contributory," that the "immediate and proximate cause" of the
injury remained the truck driver's "lack of due care" and that consequently respondent Dionisio may
recover damages though such damages are subject to mitigation by the courts (Article 2179, Civil Code
of the Philippines).

OTHER IMPORTANT POINTS IN THE CASE OF PHOENIX:

The petitioners, however, urge that the truck driver's negligence was merely a "passive and static
condition" and that private respondent Dionisio's negligence was an "efficient intervening cause and that
consequently Dionisio's negligence must be regarded as the legal and proximate cause of the accident
rather than the earlier negligence of Carbonel. We note that the petitioners' arguments are drawn from a
reading of some of the older cases in various jurisdictions in the United States but we are unable to
persuade ourselves that these arguments have any validity for our jurisdiction. We note, firstly, that even
in the United States, the distinctions between "cause" and "condition" which the 'petitioners would have
us adopt have already been "almost entirely discredited." Professors and Keeton make this quite clear:

Cause and condition. Many courts have sought to distinguish between the active "cause"
of the harm and the existing "conditions" upon which that cause operated. If the defendant has
created only a passive static condition which made the damage possible, the defendant is said
not to be liable. But so far as the fact of causation is concerned, in the sense of necessary
antecedents which have played an important part in producing the result it is quite impossible to
distinguish between active forces and passive situations, particularly since, as is invariably the
case, the latter are the result of other active forces which have gone before. The defendant who
spills gasoline about the premises creates a "condition," but the act may be culpable because of
the danger of fire. When a spark ignites the gasoline, the condition has done quite as much to
bring about the fire as the spark; and since that is the very risk which the defendant has created,
the defendant will not escape responsibility. Even the lapse of a considerable time during which
the "condition" remains static will not necessarily affect liability; one who digs a trench in the
highway may still be liable to another who fans into it a month afterward. "Cause" and "condition"
still find occasional mention in the decisions; but the distinction is now almost entirely discredited.
So far as it has any validity at all, it must refer to the type of case where the forces set in
operation by the defendant have come to rest in a position of apparent safety, and some new
force intervenes. But even in such cases, it is not the distinction between "cause" and "condition"
which is important but the nature of the risk and the character of the intervening cause.

Case: Austria versus Court of Appeals [G.R. No. 133323. March 9, 2000]

5. DOCTRINE OF LAST CLEAR CHANCE

 Originally, the doctrine of last clear chance was developed as an exception to the harshness of
the effects of contributory negligence in Anglo-American law. Thus, prior to the enactment of the Civil
Code, the doctrine was imported into our jurisdiction as well.

The last clear chance is a doctrine in the law of torts that is employed in contributory negligence
jurisdictions. Under this doctrine, a negligent plaintiff can nonetheless recover if they are able to show that
the defendant had the last opportunity to avoid the accident. Though the stated rationale has differed
depending on the court adopting the doctrine, the underlying idea was to mitigate the harshness of the
contributory negligence rule. The defendant can also use this doctrine as a defense. If the plaintiff has the
last clear chance to avoid the accident, the defendant will not be liable. In the United States, Great Britain
and Canada, this doctrine is mostly a historical curiosity, as the comparative negligence rule has
displaced contributory negligence in almost every state.

DEFINITION OF THE DOCTRINE OF LAST CLEAR CHANCE

The doctrine of "last clear chance" (also referred to, at times, as "supervening negligence" or as
"discovered peril"). The doctrine, in essence, is to the effect 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
(see Picart vs. Smith, 37 Phil. 809). Stated differently, the rule would also mean that an antecedent
negligence of a person does not preclude the recovery of damages for supervening negligence of, or bar
a defense against the 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 (Pantranco North Express, Inc. vs. Baesa,
179 SCRA 384; Glan People's Lumber and Hardware vs. Intermediate Appellate Court, 173 SCRA 464).

Picart vs. Smith

37 Phil. 814 (1918)

Facts: Picart seeks to render from Smith the sum of P31,000.00 as damages involving an
accident caused by Smith while driving his automobile. The incident happened on the Carlatan Bridge of
San Fernando, La Union. Picart was riding his pony over the said bridge and when he was halfway across
Smith approached.

Issue: Whether or not Smith is guilty of negligence.

Held: Yes. From the facts mentioned, it was derived that the control of the situation had passed
entirely to Smith and it was his duty to bring the car to an immediate stop or pass in the other side of the
road, there being no other persons on the bridge, to avoid collision. Under the circumstances, the law is
that the person who has the last clear chance to avoid the impending harm and fails to do is chargeable
with the consequences, without reference to the prior negligence of the other party.

Notes:

The doctrine was useful in this jurisdiction when there was as yet no provision on the
legal effects of Contributory Negligence.

Thus, in proper legal contemplation, there is LCC only because of CN.

However, after the passage of the NCC, Contributory Negligence as it was understood in
common law was abolished and replaced by Article 2179.

Properly, therefore, there should have been no more cases decided under the doctrine of
last clear chance after August 30, 1950.
 This was recognized by the Supreme Court itself in the case of Phoenix versus IAC
(1987) supra, when it ruled that:

The theory here of petitioners is that while the petitioner truck driver was negligent,
private respondent Dionisio had the "last clear chance" of avoiding the accident and
hence his injuries, and that Dionisio having failed to take that "last clear chance" must
bear his own injuries alone. The last clear chance doctrine of the common law was
imported into our jurisdiction by Picart vs. Smith but it is a matter for debate whether, or
to what extent, it has found its way into the Civil Code of the Philippines. The historical
function of that doctrine in the common law was to mitigate the harshness of another
common law doctrine or rule that of contributory negligence. The common law rule of
contributory negligence prevented any recovery at all by a plaintiff who was also
negligent, even if the plaintiff's negligence was relatively minor as compared with the
wrongful act or omission of the defendant. The common law notion of last clear chance
permitted courts to grant recovery to a plaintiff who had also been negligent provided that
the defendant had the last clear chance to avoid the casualty and failed to do so.
Accordingly, it is difficult to see what role, if any, the common law last clear chance
doctrine has to play in a jurisdiction where the common law concept of contributory
negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it
has been in Article 2179 of the Civil Code of the Philippines.
Is there perhaps a general concept of "last clear chance" that may be extracted from its
common law matrix and utilized as a general rule in negligence cases in a civil law
jurisdiction like ours? We do not believe so. Under Article 2179, the task of a court, in
technical terms, is to determine whose negligence the plaintiff's or the defendant's
was the legal or proximate cause of the injury. That task is not simply or even primarily an
exercise in chronology or physics, as the petitioners seem to imply by the use of terms
like "last" or "intervening" or "immediate." The relative location in the continuum of time of
the plaintiff's and the defendant's negligent acts or omissions, is only one of the relevant
factors that may be taken into account. Of more fundamental importance are the nature
of the negligent act or omission of each party and the character and gravity of the risks
created by such act or omission for the rest of the community. The petitioners urge that
the truck driver (and therefore his employer) should be absolved from responsibility for
his own prior negligence because the unfortunate plaintiff failed to act with that increased
diligence which had become necessary to avoid the peril precisely created by the truck
driver's own wrongful act or omission. To accept this proposition is to come too close to
wiping out the fundamental principle of law that a man must respond for the forseeable
consequences of his own negligent act or omission. Our law on quasi-delicts seeks to
reduce the risks and burdens of living in society and to allocate them among the
members of society. To accept the petitioners' pro-position must tend to weaken the very
bonds of society.

There are several cases on this matter where the Supreme Court flip-flopped repeatedly as to the
applicability of the doctrine. Examples are:

GLAN PEOPLES LUMBER versus NLRC

173 SCRA 464, 1989
(SC applied doctrine)

PANTRANCO versus BAESA

179 SCRA 384, 1989
(SC applied doctrine)

LBC AIR CARGO, INC. versus COURT OF APPEALS

G.R. No. 101683, 1995
(SC applied doctrine)
PHIL. BANK OF COMMERCE versus CA
March 14, 1997
(SC applied doctrine in a non-accident case)

WILLIAM TIU versus PEDRO A. ARRIESGADO

G.R. No. 138060, September 1, 2004
(SC rejected doctrine and applied Phoenix)

PHILIPPINE NATIONAL RAILWAYS versus ETHEL BRUNTY

G.R. No. 169891 November 2, 2006
(SC applied doctrine)

LAPANDAY AGRICULTURAL and DEVELOPMENT versus ANGALA

G.R. No. 153076, June 21, 2007
(SC applied doctrine)

SOLIDBANK CORP. VS. SPS. PETER & SUSAN TAN

G.R. No. 167346, April 2, 2007

On the last issue, we hold that the trial court did not commit any error. A cursory reading of its
decision reveals that it anchored its conclusion that petitioner was negligent on Article 1173 of the Civil
Code.

In citing the different provisions of the Civil Code on common carriers, the trial court merely made
reference to the kind of diligence that petitioner should have performed under the circumstances. In other
words, like a common carrier whose business is also imbued with public interest, petitioner should have
exercised extraordinary diligence to negate its liability to respondents.

We find no compelling reason to disallow the application of the provisions on common carriers to
this case if only to emphasize the fact that banking institutions (like petitioner) have the duty to exercise
the highest degree of diligence when transacting with the public. By the nature of their business, they are
required to observe the highest standards of integrity and performance, and utmost assiduousness as
well.

Take note that if the plaintiffs contributory negligence is duly proven, the matter of whether or not
to mitigate the damages is not a matter of discretion. The courts are absolutely required to lessen the
damages to be awarded. The extent of the mitigation is, however, within the sound discretion of the court.

6. PRESCRIPTION

Art. 1106. By prescription, one acquires ownership and other real rights through the lapse of time
in the manner and under the conditions laid down by law.

In the same way, rights and conditions are lost by prescription.

Prescription is of two types: 1. ACQUISITIVE; 2. EXTINCTIVE

What is the prescriptive period for filing an action based on quasi-delict?

Art. 1146. The following actions must be instituted within four years:

(1) Upon an injury to the rights of the plaintiff;

(2) Upon a quasi-delict. (n)
 Article 1146 is a new provision. It therefore appears that prior to the enactment of the Civil Code,
there was no prescriptive period for filing an action based on torts or quasi-delicts. Why?

Torts, under Anglo-American law, covered both civil wrongs and criminal offenses. Thus, it would
appear that, before the New Civil Code, if a tortious act was civil in nature, the prescriptive period applied
would be the one set for civil actions. Conversely, if a tortious act was criminal in nature, the prescriptive
period applied would be the one set for criminal actions also.

PAULA versus SARABIA, July 31, 1958

Facts: In June 1951, Basco was riding on a bus owned by defendant Sarabia when it collided
with a truck owned by Lim. Basco died on July 25, 1951. On April 19, 1955, a complaint against Sarabia
was filed by Bascos heirs. On July 11, 1955, Sarabia filed a third-party complaint against Lim and her
driver.

ISSUE: From what time must the 4-year prescriptive period be counted for the filing of the third-
party complaint from the day of collision or from the filing of the principal complaint?

HELD: The period begins from the day of the collision, since the action is based on a quasi-
delict. The third-party complaint was therefore dismissed.

SOURCE OF OBLIGATION Prescriptive Period Reckoned from

Law 10 years The time the right of action accrues
(Article 1144)
Contract written 10 years The time the right of action accrues
(Article 1144)
Contract oral 6 years The time the right of action accrues
(Article 1145)
Quasi-contract 6 years The time the right of action accrues
(Article 1145)
Quasi-delict 4 years The day when the quasi-delict was
(Article 1146) committed
CRIME - D, RP & RT 20 years The day on which the crime is
Other afflictive penalties 15 years discovered by the offended party, the
(PM, P/TAD, P/TSD) authorities or their agents (Art. 91,
Correctional penalties 10 years RPC)
(PC, suspension, destierro)
AM 5 years
Libel and similar offenses 1 year
Oral defamation/S by D 6 months
Light offenses 1 month
(see Art. 90, RPC)

APPLICATION: A was riding a public bus belonging to B. The bus collided with a truck belonging to C. A
suffered physical injuries. Therefore, A has the option to file actions based on CULPA-CONTRACTUAL,
CULPA-AQUILIANA or CULPA-CRIMINAL. They prescribe as follows:

Breach of contract of carriage 10 years, if written Date of collision which is also

the date of breach of the
 6 years, if oral obligation to carry A safely

Quasi-delict 4 years Date of collision which is also

the date of when the quasi-
delict was committed
Physical injuries resulting from Date on which the crime is
reckless imprudence discovered by the offended
Highest is PC 10 years party, the authorities or their
Lowest is A Menor 1 month agents

Thus, we may add prescription as one more point of distinction in our traditional table contrasting the
different forms of CULPA.

CULPA CULPA CULPA

CONTRACTUAL AQUILIANA CRIMINAL
Type of right violated Private right based on Private right based Public right based
contract on law on law
Remedies Action for specific Action for damages Criminal
performance or under Article 2176. prosecution plus
rescission plus damages damages under
(under Article 1170) in Articles 100, 104
either case and 107 of the RPC.
Prescription Prescribes in either 6 Prescribes in 4 years Period of
years or 10 years. prescription
depends on the
crime committed

7. DOCTRINE OF ASSUMPTION OF RISK

The doctrine of assumption of risk bars a claim for negligence when it can be shown that the
plaintiff, by his or her conduct, voluntarily chose to encounter a known and specific danger and either fully
appreciated or should have fully appreciated the risks posed by that conduct.
In Nelson versus Great Eastern Resort Management, Virginia Supreme Court 574 S.E.2d 277,
January 10, 2003 , Plaintiff Nelson was injured while snow tubing on defendants recreational facility. The
accident occurred when plaintiff was exiting the snow slide and another tuber was permitted by
defendants employee to start the slide too early and crashed into plaintiff. The trial court instructed the
jury that defendant is not liable for inherent risks from snow tubing and the jury found for the defendant.
In this opinion, the Virginia Supreme Court rejects the proposition that a participant in a recreational
activity is deemed to consent to the inherent risks (which were not defined by the trial court) of the
activity. Instead, for assumption of the risk, there must be proof that the plaintiff actually thought about
the risks involved, decided to undergo them, and was injured when one of those risks materialized.

In Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964 (N.Y.1986), a case in which a
participant in a professional horse race was injured by the alleged negligence of another participant and
the operator of the racing track:

The risk assumed ... means that the plaintiff, in advance, has given his consent to relieve the
defendant of an obligation of conduct toward him, and to take his chances of injury from a known
risk arising from what the defendant is to do or leave undone. The situation is then the same as
where the plaintiff consents to the infliction of what would otherwise be an intentional tort, except
that the consent is to run the risk of unintended injury. The result is that the defendant is relieved
of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.
 The applicable Latin maxim is VOLENTI NON FIT INJURIA or VOLENTI NON FIT INJURIA
NEQUES DOLUS meaning HE WHO VOLUNTARILY ASSUMES A RISK, DOES NOT SUFFER
DAMAGE THEREBY or "to a willing person, no injury is done." This doctrine holds that a person who
knowingly and willingly puts himself in a dangerous situation cannot sue for any resulting injuries. Again,
this is a common law doctrine of Anglo-American origin which serves as a bar to the recovery of damages
in negligence cases.

It is a defense in tort law that means that where a person engages in an event accepting and
aware of the risks inherent in that event, then they can not later complain of, or seek compensation for an
injury suffered during the event. This is used most often to defend against tort actions as a result of a
sports injury.

In the Philippines, this was first applied in the case of:

AFIALDA vs. HISOLE

G.R. No. L-2075, November 29, 1949
Facts: Loreto Afialda, was employed by the defendant spouses Hisole as caretaker of their carabaos at
a fixed compensation. While tending the animals he was, on March 21, 1947, gored by one of them and
later died as a consequence of his injuries. The heirs of the deceased alleged that the mishap was due
neither to the own fault of Afialda nor to force majeure. Plaintiff seeks to hold defendants liable under
Article 1905 of the Civil Code (now Art. 2183), which reads:

The possessor of an animal, or the one who uses the same, is liable for any damages it may
cause, even if such animal should escape from him or stray away.

This liability shall cease only in case, the damage should arise from force majeure or from the
fault of the person who may have suffered it.

Issue: Whether the owner of the animal is liable when damage is caused to its caretaker.

Held: In the present case, the animal was in custody and under the control of the caretaker, who was
paid for his work as such. Obviously, it was the caretaker's business to try to prevent the animal from
causing injury or damage to anyone, including himself. And being injured by the animal under those
circumstances, was one of the risks of the occupation which he had voluntarily assumed and for which he
must take the consequences.

In a decision of the Spanish Supreme Court, cited by Manresa in his Commentaries (Vol. 12, p. 578), the
death of an employee who was bitten by a feline which his master had asked him to take to his
establishment was by said tribunal declared to be "a veritable accident of labor" which should come under
the labor laws rather than under article 1905 of the Civil Code.

However, the ruling of the Supreme Court was different in the case of:

Another interesting case is the case of:

NIKKO HOTEL MANILA GARDEN versus

ROBERTO REYES, a.k.a. AMAY BISAYA,
G.R. No. 154259, February 28, 2005
8. FORCE MAJEURE

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.

ACTUS DEI NEMINI FACIT INJURIAM The act of God prejudices no one.

REQUISITES:

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 (ex. a building is destroyed by an
earthquake; typhoon destroys ship and cargo);
2. It must be impossible to foresee the event or, if it could be foreseen, it must be impossible to
avoid (ex. earthquake is impossible to foresee and impossible to avoid; that a typhoon will strike
is impossible to foresee and avoid but see Tan Chiong Sian versus Inchausti & Co., 22 Phil. 152);
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.

Read Cases
TAN CHIONG SIAN versus INCHAUSTI & CO.
22 Phil. 152

UMALI versus BACANI

69 SCRA 263

Facts: As a result of a strong typhoon that hit Alcala, Pangasinan, banana plants near Alcala Electric
Plant fell on the electric wire which caused it to be cut. One end of the electric wire was left hanging on
the electric post and the other fell on the ground under the fallen banana plants. Knowing this, the
Barangay Captain told an employee of the electric plant about it and asked him to fix it. The latter said
that he will look for a lineman to fix it. Manuel Saynes, a boy living nearby, got in contact with the live cut
wire which led to his death. Fidel Saynes, the father, filed an action for damages against Teodoro Umali,
owner and manager of the electric plant. Umali contended that the death of Manuel Saynes was due to a
fortuitous event, the strong storm that caused the banana plants to fall and cut the electric wire.

Held:

9. DUE DILIGENCE IN THE SELECTION AND SUPERVISION

Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible. XXX

The responsibility treated of in this article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family to prevent damage.