1 Torts and Damages | Atty.
Marianne Beltran-Angeles
[G.R. No. L-7664. August 29, 1958.]
MR. AND MRS. AMADOR C. ONG, Plaintiffs-Appellants, v. DECISION
METROPOLITAN WATER DISTRICT, Defendant-Appellee.
Tomas Tria Tirona for Appellants. BAUTISTA ANGELO, J.:
Government Corporate Counsel Ambrosio Padilla and Juan C.
Jimenez for Appellee. Plaintiffs spouses seek to recover from defendant, a government-owned
corporation, the sum of P50,000 as damages, P5,000 as funeral expenses,
and P11,000 as attorneys’ fees, for the death of their son Dominador Ong
SYLLABUS in one of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs’ son was drowned in one of its
1. DAMAGES; FAULT OR NEGLIGENCE; CLAIMANT HAS BURDEN swimming pools but avers that his death was caused by his own
TO PROVE. — The person claiming damages has the burden of proving negligence or by unavoidable accident. Defendant also avers that it had
that the damages is caused by the fault or negligence of the person from exercised due diligence in the selection of, and supervision over, its
whom the damage is claimed, or of one of his employees (Walter A. Smith employees and that it had observed the diligence required by law under
& Co. v. Cadwallader Gibson Lumber Co., 55 Phil., 517). the circumstances.
2. ID.; ABSENCE OF NEGLIGENCE OF OPERATOR OF SWIMMING After trial, the lower court found that the action of plaintiffs is untenable
POOLS; DROWNING OR DEATH OF PATRON. — The operator of and dismissed the complaint without pronouncement as to costs.
swimming pools will not be held liable for the drowning or death of 3 Plaintiffs took the case on appeal directly to this Court because the
patron, if said operator had exercised due diligence in the election of, and amount involved exceeds the sum of P50,000.
supervision over, its employees and that it had observed the diligence
required by law under the circumstances — in that it has taken all Defendant owns and operates three recreational swimming pools at its
necessary precautions to avoid danger to the lives of its patrons or Balara filters, Diliman, Quezon City, to which people are invited and for
prevent accident. which may cause their death. which a nominal fee of P0.50 for adults and P0.20 for children is charged.
The main pool is between two small pools of oval shape known as the
3. WORDS AND PHRASES; "DOCTRINE OF LAST CLEAR CHANCE." "Wading pool" and the "Beginners Pool." There are diving boards in the
— The doctrine of last clear chance simply means that the negligence of a big pools and the depths of the water at different parts are indicated by
claimant does not preclude a recovery for the negligence of defendant appropriate marks on the wall. The care and supervision of the pools and
where it appears that the latter, by exercising reasonable care and the users thereof is entrusted to a recreational section composed of
prudence, might have avoided injurious consequences to claimant Simeon Chongco as chief, Armando Rule, a male nurse, and six lifeguards
notwithstanding his negligence. Or "As the doctrine usually is stated, a who had taken the life-saving course given by the Philippine Red Cross at
person who has the last clear chance or opportunity of avoiding an the YMCA in Manila. For the safety of its patrons, defendant has
accident, notwithstanding the negligent acts of his opponent or the provided the pools with a ring buoy, toy roof, towing line, saving kit and a
negligence of a third person which is imputed to his opponent, is resuscitator. There is also a sanitary inspector who is in charge of a clinic
considered in law solely responsible for the consequences of the accident." established for the benefit of the patrons. Defendant has also on display
(38 Am. Jur. pp. 900-902.) in a conspicuous place certain rules and regulations governing the use of
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2 Torts and Damages | Atty. Marianne Beltran-Angeles
the pools, one of which prohibits the swimming in the pool alone or this failed to revive him, they applied the resuscitator until the two
without any attendant. Although defendant does not maintain a full- time oxygen tanks were exhausted. Not long thereafter, Dr. Ayuyao arrived
physician in the swimming pool compound, it has however a nurse and a with another resuscitator, but the same became of no use because he
sanitary inspector ready to administer injections or operate the oxygen found the boy already dead. The doctor ordered that the body be taken to
resuscitator if the need should arise. the clinic.
In the afternoon of July 5, 1952, at about 1:00 o’clock, Dominador Ong, a In the evening of the same day, July 5, 1952, the incident was
14-year old high school student and a boy scout, and his brothers Ruben investigated by the Police Department of Quezon City and in the
and Eusebio, went to defendant’s swimming pools. This was not the first investigation boys Ruben Ong and Andres Hagad, Jr. gave written
time that the three brothers had gone to said natatorium for they had statements. On the following day, July 6, 1952, an autopsy was performed
already been there four or five times before. They arrived at the by Dr. Enrique V. de los Santos, Chief, Medico Legal Division, National
natatorium at about 1:45 p.m. After paying the requisite admission fee, Bureau of Investigation, who found in the body of the deceased the
they immediately went to one of the small pools where the water was following: an abrasion on the right elbow lateral aspect; contusion on the
shallow. At about 4:35 p.m., Dominador Ong told his brothers that he was right forehead; hematoma on the scalp, frontal region, right side; a
going to the locker room in an adjoining building to drink a bottle of coke. congestion in the brain with petechial subcortical hemorrhage, frontal
Upon hearing this, Ruben and Eusebio went to the bigger pool leaving lobe; cyanosis on the face and on the nails; the lung was soggy with fine
Dominador in the small pool and so they did not see the latter when he froth in the bronchioles; dark fluid blood in the heart; congestion in the
left the pool to get a bottle of coke. In that afternoon, there were two visceral organs, and brownish fluid in the stomach. The death was due to
lifeguards on duty in the pool compound, namely, Manuel Abaño and asphyxia by submersion in water.
Mario Villanueva. The tour of duty of Abaño was from 8:00 to 12:00 in the
morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from The issue posed in this appeal is whether the death of minor Dominador
7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that Ong can be attributed to the negligence of defendant and/or its employees
afternoon, there were about twenty bathers inside the pool area and so as to entitle plaintiffs to recover damages.
Manuel Abaño was going around the pools to observe the bathers in
compliance with the instructions of his chief. The present action is governed by Article 2176 in relation to Article 2080
of the new Civil Code. The first article provides that "whoever by act or
Between 4:40 to 4:45 p.m., some boys who were in the pool area informed omission causes damage to another, there being fault or negligence, is
a bather by the name of Andres Hagad, Jr., that somebody was swimming obliged to pay for the damages done." Such fault or negligence is called
under water for quite a long time. Another boy informed lifeguard quasi-delict. Under the second article, this obligation is demandable not
Manuel Abaño of the same happening and Abaño immediately jumped only for one’s own acts or omissions but also for those of persons for whom
into the big swimming pool and retrieved the apparently lifeless body of one is responsible. In addition, we may quote the following authorities
Dominador Ong from the bottom. The body was placed at the edge of the cited in the decision of the trial court:jgc:chanrobles.com.ph
pool and Abaño immediately applied manual artificial respiration. Soon
after, male nurse Armando Rule came to render assistance, followed by "‘The rule is well settled that the owners of resorts to which people
sanitary inspector Iluminado Vicente who, after being called by phone generally are expressly or by implication invited are legally bound to
from the clinic by one of the security guards, boarded a jeep carrying with exercise ordinary care and prudence in the management and
him the resuscitator and a medicine kit, and upon arriving he injected the maintenance of such resorts, to the end of making them reasonably safe
boy with camphorated oil. After the injection, Vicente left on a jeep in for visitors’ (Larkin v. Saltair Beach Co., 30 Utah 86, 83 Pac. 688).
order to fetch Dr. Ayuyao from the University of the Philippines.
Meanwhile, Abaño continued the artificial manual respiration, and when "‘Although the proprietor of a natatorium is liable for injuries to a patron,
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3 Torts and Damages | Atty. Marianne Beltran-Angeles
resulting from lack of ordinary care in providing for his safety, without lifeguard Abaño, but is belied by the written statements given by them in
the fault of the patron, he is not, however, in any sense deemed to be the the investigation conducted by the Police Department of Quezon City
insurer of the safety of patrons. And the death of a patron within his approximately three hours after the happening of the accident. Thus,
premises does not cast upon him the burden of excusing himself from any these two boys admitted in the investigation that they narrated in their
presumption of negligence’ (Bertalot v. Kinnare. 72 Ill. App. 52, 22 A. L. statements everything they knew of the accident, but, as found by the
R. 635; Flora v. Bimini Water Co., 161 Cal. 495, 119 Pac. 661). Thus in trial nowhere in said statements do they state that the lifeguard was
Bertalot v. Kinnare, supra, it was held that there could be no recovery for chatting with the security guard at the gate of the swimming pool or was
the death by drowning of a fifteen-year boy in defendant’s natatorium, reading a comic magazine when the alarm was given for which reason he
where it appeared merely that he was lastly seen alive in water at the failed to immediately respond to the alarm. On the contrary, what Ruben
shallow end of the pool, and some ten or fifteen minutes later was Ong particularly emphasized therein was that after the lifeguard heard
discovered unconscious, and perhaps lifeless, at the bottom of the pool, all the shouts for help, the latter immediately dived into the pool to retrieve
efforts to resuscitate him being without avail."cralaw virtua1aw library the person under water who turned out to be his brother. For this reason,
the trial court made this conclusion: "The testimony of Ruben Ong and
Since the present action is one for damages founded on culpable Andres Hagad, Jr. as to the alleged failure of the lifeguard Abaño to
negligence, the principle to be observed is that the person claiming immediately respond to their call may therefore be disregarded because
damages has the burden of proving that the damage is caused by the they are belied by their written statements." (Emphasis supplied.) .
fault or negligence of the person from whom the damage is claimed, or of
one of his employees (Walter A. Smith & Co. v. Cadwallader Gibson On the other hand, there is sufficient evidence to show that appellee has
Lumber Co., 55 Phil., 517). The question then that arises is: Have taken all necessary precautions to avoid danger to the lives of its patrons
appellants established by sufficient evidence the existence of fault or or prevent accident which may cause their death. Thus, it has been
negligence on the part of appellee so as to render it liable for damages for shown that the swimming pools of appellee are provided with a ring buoy,
the death of Dominador Ong? toy roof, towing line, oxygen resuscitator and a first aid medicine kit. The
bottom of the pools is painted with black colors so as to insure clear
There is no question that appellants had striven to prove that appellee visibility. There is on display in a conspicuous place within the area
failed to take the necessary precaution to protect the lives of its patrons certain rules and regulations governing the use of the pools. Appellee
by not placing at the swimming pools efficient and competent employees employs six lifeguards who are all trained as they had taken a course for
who may render help at a moment’s notice, and they ascribed such that purpose and were issued certificates of proficiency. These lifeguards
negligence to appellee because the lifeguard it had on the occasion minor work on schedule prepared by their chief and arranged in such a way as
Ong was drowning was not available or was attending to something else to have two guards at a time on duty to look after the safety of the
with the result that his help came late. Thus, appellants tried to prove bathers. There is a male nurse and a sanitary inspector with a clinic
through the testimony of Andres Hagad, Jr. and Ruben Ong that when provided with oxygen resuscitator. And there are security guards who are
Eusebio Ong and Hagad, Jr. detected that there was a drowning person available always in case of emergency. .
in the bottom of the big swimming pool and shouted to the lifeguard for
help, lifeguard Manuel Abaño did not immediately respond to the alarm The record also shows that when the body of minor Ong was retrieved
and it was only upon the third call that he threw away the magazine he from the bottom of the pool, the employees of appellee did everything
was reading and allowed three or four minutes to elapse before retrieving possible to bring him back to life. Thus, after he was placed at the edge of
the body from the water. This negligence of Abaño, they contend, is the pool, lifeguard Abaño immediately gave him manual artificial
attributable to appellee. respiration. Soon thereafter, nurse Armando Rule arrived, followed by
sanitary inspector Iluminado Vicente who brought with him an oxygen
But the claim of these two witnesses not only was vehemently denied by resuscitator. When they found that the pulse of the boy was abnormal,
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4 Torts and Damages | Atty. Marianne Beltran-Angeles
the inspector immediately injected him with camphorated oil. When the who has the last clear chance to avoid the impending harm and fails to do
manual artificial respiration proved ineffective they applied the oxygen so is chargeable with the consequences, without reference to the prior
resuscitator until its contents were exhausted. And while all these efforts negligence of the other party." (Picart v. Smith, 37 Phil., 809)
were being made, they sent for Dr. Ayuyao from the University of the
Philippines who however came late because upon examining the body Since it is not known how minor Ong came into the big swimming pool
found him to be already dead. All of the foregoing shows that appellee has and it being apparent that he went there without any companion in
done what is humanly possible under the circumstances to restore life to violation of one of the regulations of appellee as regards the use of the
minor Ong and for that reason it is unfair to hold it liable for his death. pools, and it appearing that lifeguard Abaño responded to the call for help
as soon as his attention was called to it and immediately after retrieving
Sensing that their former theory as regards the liability of appellee may the body all efforts at the disposal of appellee had been put into play in
not be of much help, appellants now switch to the theory that even if it be order to bring him back to life, it is clear that there is no room for the
assumed that the deceased is partly to be blamed for the unfortunate application of the doctrine now invoked by appellants to impute liability
incident, still appellee may be held liable under the doctrine of "last clear to appellee.
chance" for the reason that, having the last opportunity to save the
victim, it failed to do so. "The last clear chance doctrine can never apply where the party charged
is required to act instantaneously, and if the injury cannot be avoided by
We do not see how this doctrine may apply, considering that the record the application of all means at hand after the peril is or should have been
does not show how minor Ong came into the big swimming pool. The only discovered; at least in cases in which any previous negligence of the party
thing the record discloses is that minor Ong informed his elder brothers charged cannot be said to have contributed to the injury. O’Mally v.
that he was going to the locker room to drink a bottle of coke but that Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063." (A.L.R. Digest, Vol.
from that time on nobody knew what happened to him until his lifeless 8, pp. 955-956)
body was retrieved. The doctrine of last clear chance simply means that
the negligence of a claimant does not preclude a recovery for the Before closing, we wish to quote the following observation of the trial
negligence of defendant where it appears that the latter, by exercising court, which we find supported by the evidence: "There is (also) a strong
reasonable care and prudence, might have avoided injurious suggestion coming from the expert evidence presented by both parties
consequences to claimant notwithstanding his negligence. Or, "As the that Dominador Ong might have dived where the water was only 5.5 feet
doctrine usually is stated, a person who has the last clear chance or deep, and in so doing he might have hit or bumped his forehead against
opportunity of avoiding an accident, notwithstanding the negligent acts of the bottom of the pool, as a consequence of which he was stunned, and
his opponent or the negligence of a third person which is imputed to his which eventually led to his drowning. As a boy scout he must have
opponent, is considered in law solely responsible for the consequences of received instructions in swimming. He knew, or must have known, that it
the accident." (38 Am. Jur. pp. 900-902) was dangerous for him to dive in that part of the pool."cralaw virtua1aw
library
"It goes without saying that the plaintiff himself was not free from fault,
for he was guilty of antecedent negligence in planting himself in the Wherefore, the decision appealed from being in accordance with law and
wrong side of the road. But as we have already stated, the defendant was the evidence, we hereby affirm the same, without pronouncement as to
also negligent; and in such case the problem always is to discover which costs.
agent is immediately and directly responsible. It will be noted that the
negligent acts of the two parties were not contemporaneous, since the Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Concepcion, Reyes,
negligence of the defendant succeeded the negligence of the plaintiff by an J.B.L., Endencia and Felix, JJ., concur.
appreciable interval. Under these circumstances, the law is that a person
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