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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) REQUISITES FOR A QUASI-DELICT 1. There must be an act or omission; 2. There must be fault or negligence attendant in the same act or omission; 3. There must be damage caused to another person; 4. There must be a causal connection between the fault or negligence and the damage; and 5.There must have been no pre-existing contractual relation between the parties. DEFENSES GENERALLY AVAILABLE IN TORTS CASES IN RELATION TO THE ELEMENTS OF A QUASI-DELICT: 1.

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NO NEGLIGENCE This is a defense of denial that is a COMPLETE DEFENSE against any imputation of negligence. The defendant, in order to be absolved from liability must be able to prove that he exercised the proper degree of diligence agreed upon in the contract or required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place.In essence, the defense is directed against the second requisite that “there must be fault or negligence attendant in the same act or omission”. 2.

THERE IS NO DAMAGE CAUSED TO THE PLAINTIFF OR THE DAMAGE CAUSED IS IN THE NATURE OF DAMNUM ABSQUE INJURIA “Damnum absque injuria” literally means “loss without wrong” or in Philippine jurisdiction, it means damage without legal injury. It is defined as a loss or damage for which there is no legal remedy. By way of example, suppose that Ms. Lim is driving her car carefully in J. P.

Laurel Avenue but a speeding truck hit and bumped her car.Because of the bumping, Ms. Lim lost control of her car and hit Mr. Jumalon. Can Mr.

Jumalon recover damages from Ms. Lim? The answer is NO. While it is the car of Ms. Lim that hit Mr. Jumalon, Ms.

Lim was not at fault and was not negligent. The foregoing is a very simple example of “damnum absque injuria”. Let us see the application of the principle in other situations. Note that in Tort Law, liability only arises if there is an invasion of a right that corresponds or coincides with a breach of duty. One situation that comes to mind is the concept of justifying circumstances in the Revised Penal Code.Briefly, they appear in Article 11 as: 1.

Self-defense; 2. Defense of relatives; 3. Defense of strangers; 4. State of necessity; 5.

Fulfillment of a duty or exercise of a right or office; and 6. Obedience of lawful orders. As a general rule, a person who commits an act which would otherwise be considered a crime is not liable for damages as the civil aspect of a crime if the justifying circumstances are present. The person’s act, however injurious to the victim or the victim’s family, is justified and he could not be deemed to have violated any right or breached any duty.However, by way of exception, if a person acts in a state of necessity, civil liability shall be apportioned among those who were benefited by the act. The actor is not liable for damages. In Article 12, par. 4, any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it is not civilly liable for damages also.

In all of the foregoing cases in Criminal Law, there is definitely some injury suffered by a person, there is no legal remedy available to seek reparation therefor.What is the justification? While there may have been a violation of a right on the part of the plaintiff, it does not concur with any breach of duty on the part of the defendant. To summarize: VIOLATION OF A RIGHT + BREACH OF DUTY = TORT LIABILITY VIOLATION OF A RIGHT BUT NOT A BREACH OF DUTY= There is loss or injury but there is no remedy for it.

DAMNUM ABSQUE INJURIA BREACH WITHOUT VIOLATION = There may be negligence or fault but there is no offended party. NO VICTIM. NO LIABILITY.

In Civil Law, we’ve come across Article 429 of the Civil Code.This is another instance where there may damage or injury but there is no liability. It states that: “Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof.

For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. ” CASES: BPI Express Credit Card versus CA (296 SCRA 260) Facts:Lawyer has credit card. Failed to pay his bill. Asked to issue a check for P15,000 otherwise credit will be cut off.

Lawyer issued postdated check. BPI sent letter to inform him that his credit card was temporarily suspended and asked him to refrain using credit card. Lawyer used credit card. Credit card was dishonored. Held: In order for plaintiff to maintain an action for the injuries which he complains of, he must establish that such injuries resulted from a breach of duty which the defendant owed the plaintiff – a concurrence of injury (VIOLATION OF RIGHT) to the plaintiff and legal responsibility (BREACH OF DUTY) by the person causing it.Thus, there can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty.

In such cases, the consequences must be borne by the person injured alone and the law affords no remedy for damages resulting from an act which does not amount to a legal injury or wrong. These situations are often called DAMNUM ABSQUE INJURIA. GLOBE MACKAY versus CA (176 SCRA 778) Instance where the act complained of was done in exercise of a right but the SC still found tort liability. – SEE ATTACHED DIGEST -DAMNUM ABSQUE INJURIA is related to the Latin maxim DAMNUM SINE INJURIA ESSE POTEST. There may be damage or loss inflicted without any act being done which the law deems an injury. For instance, harm may be caused by a person exercising his own rights of property (Article 429 of the Civil Code). However, not all exercise of property rights is DAMNUM ABSQUE INJURIA.

A property owner is still limited by the following: 1. Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. . SIC UTERE TUO UT ALIENUM NON LAEDAS or so use your own property as not to injure your neighbors. This principle will be discussed further in NUISANCE.

Note that, in essence, the defense of DAMNUM ABSQUE INJURIA is directed against the third requisite of quasi-delicts that “(t)here must be damage caused to another person” because damage in fact may not necessarily be damage in law. 3. PLAINTIFF’S OWN NEGLIGENCE IS THE PROXIMATE CAUSE OF THE LOSS ARTICLE 2179. When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages.XXX This is also a COMPLETE DEFENSE directed particularly to the element of causation or that “(t)here must be a causal connection between the fault or negligence and the damage. ” We are all familiar with the scientific law of cause and effect.

In tort law, it is not at all that different, only that the cause is the FAULT OR NEGLIGENCE and the effect is the DAMAGE OR INJURY caused to another. Furthermore, it is required that the negligence is the proximate cause of the injury. What therefore is PROXIMATE CAUSE?Proximate cause is that cause which, in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred (BATACLAN versus MEDINA (102 Phil. 181)). To be simplistic about it, imagine a row of 20 perfectly aligned dominoes that are spaced closely. If you flick the first domino, it will cause the second domino to fall and the second will cause the third to fall and so on. Let us suppose that the 20th domino is the effect or the damage or injury.

Is the proximate cause of the falling of the 20th domino the 19th domino, which is the nearest and most immediate to the 20th domino? The answer is NO, because in this example, all the dominoes fell because the first domino is flicked. Thus, the flicking of the first domino must be the proximate cause of the damage or injury as represented by the 20th domino. As ruled in People versus Lizalde, 59 OG 1241, the proximate cause of an injury is not necessarily the immediate cause or the cause nearest in time, distance or space.In the same vein, let us suppose that after flicking the 1st domino, another person flicks the 15th domino. Thus, while the 1st domino is causing the fall of the succeeding dominoes 2 to 14, the 15th domino is simultaneously causing the fall of dominoes 16 to 19 and ultimately domino number 20. Can we still consider the flicking of the first domino as the proximate cause of the falling of the last domino? The answer is NO. Why? Because the natural and continuous sequence was already broken by an efficient intervening cause which is the flicking of the 15th domino.

What therefore is an efficient intervening cause? It is one which destroys the causal connection between the negligent act and injury and thereby negatives liability. It is also known as a PRE-EMPTIVE CAUSE which breaks the continuity of causal connection between the original negligent act or omission and the injury so that the former cannot be said to have been the efficient cause of the latter. CASES: Rodrigueza vs. Manila Railroad Co. , G. R. No.

15688, November 19, 1921 Facts:The house of the plaintiff was razed by fire because of the sparks emitted by the defendant’s train.The fire started in one house until it reached the house of the plaintiff. The defendant contended that the fire would not have spread to the house of the plaintiff were it not for the wind, which is contended to be an efficient intervening cause. Held:A cause is not intervening if it is already in operation at the time the negligent act was committed.

The wind cannot be deemed to be an efficient intervening cause because it was already in operation at the time of the negligence of the defendant.Even if the wind was not in operation then, it cannot be considered to be an efficient intervening cause because the wind did not break the chain of causation between the negligence of the defendant and the resulting damage to the plaintiff. In the case of Rodrigueza, at the very least, the wind may have been a contributory cause or a remote cause, but it was not an efficient intervening cause. What is a remote cause? It is that cause which some independent force merely took advantage of to accomplish something not the natural effect thereof.

McKee vs. IAC (211 SCRA 517) Facts:Plaintiff Jose Koh was driving along the highway. He swerved his car to the left and encroached upon the opposite lane to avoid hitting two children.

His car was hit by a speeding truck coming from the opposite direction. Jose Koh sued the driver of the truck. Held: The efficient intervening cause is the negligence of the defendant.

The plaintiff may be negligent but the defendant’s negligence pre-empted the effect of such negligence.Although it may be said that Jose Koh’s act was negligent and was the initial act in the chain of events, it cannot be said that the same caused the injuries and deaths because of the occurrence of a sufficient intervening event, the negligent act of the truck driver. The truck driver did not heed the warning signs of Koh to slow down. Instead of swerving to his right (to the dirt road portion) which was the proper precautionary measure, he maintained his speed. CONCLUSIONS:The first cause is not necessarily the proximate cause. DOCTRINE OF PROXIMATE CAUSEIn order to hold a person liable for quasi-delict, there must be a direct relation of cause and effect between fault or negligence and damage.

The fault or negligence of the defendant must be the proximate cause in producing the injury. TESTS ADOPTED TO DETERMINE PROXIMATE CAUSE: 4. CONTRIBUTORY NEGLIGENCE ARTICLE 2179. XXX 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) Contributory negligence, under Article 2179 is a PARTIAL DEFENSE as the courts are mandated to merely mitigate the damages to be awarded to the plaintiff.

The defendant, because his lack of due care is still the immediate and proximate cause of the injury, is still ultimately liable with the modification that his liability to indemnify the plaintiff is lessened. Take note that if the plaintiff’s 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. 5. LAST CLEAR CHANCE – Picart versus Smith CASES:PICART versus SMITH (37 Phil. 809) GLAN PEOPLES LUMBER versus NLRC (173 SCRA 464) PANTRANCO versus BAESA (179 SCRA 384) PHIL. BANK OF COMMERCE versus CA (March 14, 1997) 6.

DUE DILIGENCE IN THE SELECTION AND SUPERVISION 7. DOCTRINE OF ASSUMPTION OF RISK 8. PRESCRIPTION 9. FORCE MAJEURE

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