The Issues of the Law of Tort and Its Peculiarities - Assignment Example

Serapio Maria Perpetua A. Serapio Academia-Research Topic: Law on Tort December 5, 2008 Law of Tort Many of the local residents, and Mr. Jones and Miss Thompson in particular, have written to GGC Ltd. To complain about the noise, dust, fumes, etc. emanating from the site. The residents of the cul-de-sac have also complained about the lorries blocking the entrance to their properties. Identify and explain the legal issues these concerns raise in relation to nuisance and advise the Board of any potential liability they have to the complainants. Answer: In this instant case we are presented with a case of nuisance where all the elements are present. Nuisance is any act, omission, establishment, business, condition of property, or anything else which: (a) Injures or endangers the health or safety of other; or (b) Annoys or offends the senses; or (c) Shocks, defies or disregards decency or morality; or (d) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or (e) Hinders or impairs the use of property. The nature of nuisance is nuisance per se or at law or nuisance per accidens or in fact. The scope of a nuisance can be public, private or mixed. Nuisance per se (nuisance at law) is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Whereas, nuisance per accidens (nuisance in fact) is one that becomes a nuisance by reason of circumstances and surroundings. Serapio 2 Public nuisances causes hurt, inconvenience, or injury to the public, generally, or to such part of the public as necessarily comes in contact to it. While a private nuisance is one which violates only private rights and produces damages to but one or a few people. The liability of the creator of the nuisance as a general rule is that he who creates a nuisance is liable for the resulting damages and ordinarily, his liability continues as long as the nuisance continues. It implies therefore that the person whose duty it is to abate a nuisance should answer for the consequences resulting from its continuance. No one is to be held liable for a nuisance which he cannot himself physically abate. All parties to the creation or maintenance of a nuisance per se are responsible for its effect without limitation of conditions or of time. All persons who join or participate in the creation or maintenance of a nuisance are liable solidarily. The abatement of a nuisance does not preclude the right of any person injured to recover damages for the past existence. Lapse of time cannot legalize any nuisance, whether public or private. The creation and maintenance of a public nuisance is punishable criminally hence, the element of criminality, which characterizes the acts of creating the nuisance, should prevent the acquisition of a right to maintain it. The remedies against a public nuisance are: (a) a prosecution under the Penal Code or any local ordinance; or (b) A civil action; or (c) Abatement, without judicial proceedings. Criminal prosecution is instituted only for a public nuisance, and not for a private nuisance. Criminal intent in this case is immaterial. A public nuisance gives no right of action to any individual but must be abated by a proceeding institutes in the name of the State. An exception however is when an individual who suffered some special damage by reason of a public nuisance, different from that sustained by the general public, may maintain a suit in equity for an injunction to abate it, or an action for damages. In Serapio 3 other words, a public nuisance is not actionable by an individual unless and until it becomes as to him, a private nuisance; i.e. until he suffers some special definite harm. A person may file an action at law for damages caused by a nuisance. The payment of damages is generally a mere reparation for past injuries, and not an authority to continue the wrong. If the nuisance is temporary or recurrent in character, each repetition of it gives rise to a new cause of action, and successive actions will lie. GGC Ltd as the defendant in the event that a case of nuisance shall be instituted by the local residents in the court can set up the following defenses: (a) Public necessity where private interest must yield to the public good; or (b) estoppel where one voluntarily places himself in a situation whereby he suffers an injury will not be heard to say that his damage is due to a nuisance maintained by another. The nuisance is hazardous to the health of the residents. Thereby it is for the best interest of everyone that Board of GGC Ltd. give immediate remedy or solution to the problems that are being presented and settle the nuisance problem the soonest possible otherwise they will have to face the consequences for the violation of law. 2) The golf club committee have written to GGC Ltd. complaining that the activities of the crane are stopping their members from completing the course safely. As a result of this, a number of members have threatened to withhold their membership payments until the crane ceases working in the area. Not wishing to lose lucrative fees, the golf club is insisting that the crane is moved to another location on the site. Advise the Board on their legal position as regards the demands of the golf club that the crane be moved and how the matter may be resolved. Serapio 4 Answer: The GGC Ltd should take into account the complaint lodged to them by the golf club committee because the operation of the crane has hampered the normal/ usual activities of the golfers in the said golf club. Thereby, the members are threatening to stop paying their membership dues which will cause big financial losses to the golf club. If this happens, the golf club can file for damages against GGC Ltd for loss of income due to unrealized earnings. This is a case for a private nuisance where there is consequential damage to a group of persons namely the golf club. GGC Ltd. is liable for it is the one who created the nuisance is liable for the resulting damages and ordinarily, his liability continues as long as the nuisance continues. It is the duty of GGC Ltd to abate the nuisance by moving the crane to a location in their property that would not impede or enter the airspace of the said golf club. Any person injured by a private nuisance may abate it by removing, or if necessary, by destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury. However, it is indispensable that the procedure for extrajudicial abatement of a public nuisance by a private person be followed. Possession alone of a real estate is sufficient to sustain an action to recover damages for the maintenance of a nuisance upon adjoining property in such manner as to injure the enjoyment of the former. In this case the golfers are hindered from playing golf because of the passage of the boom of the crane in their airspace. 3. The management of GGC Ltd. are very concerned about the threats made by Major Gowan towards Frank and wish to take some action to prevent a recurrence of such behavior by other golfers. Serapio 5 Advise the board of any civil action that could be taken concerning the threats to Frank, so that they can determine whether they are prepared to help him bring an action for compensation. Answer: The civil action that could be taken by Major Gowan in reference to the near accident involving the sudden moving of the crane overhead and almost hitting him and spilling soil on him is reckless imprudence. Quasi-delict is present when there is an act or omission which causes damage or in jury is caused to another. Fault or negligence is present if there is no pre-existing contractual relations between the parties or casual connection between damage done and act/omission. Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposes; if it would have constituted a light felony, the penalty of arresto mayor in its maximum period shall be imposed. The elements of reckless imprudence are: (a) That the offender does or fails to do an act; (b) That the doing or the failure to do that act is voluntary; (c) That it be without malice; (d) That material damage results from the reckless imprudence; and (e) That 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 space. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was not in the vehicle, could have, by the use of due diligence, prevented the misfortune. Major Gowan must establish, employer-employee relationship and that the employee was acting Serapio 6 within the scope of his assigned task when the tort complained of was committed. It is only then that the employer may find it necessary to interpose the defense of due diligence in the selection and supervision of the employee. As GGC Ltd is the employer of Frank, the crane driver, GGC under the Civil Code is directly and primarily liable for the resulting damages. The presumption that they are negligent flows from the negligence of their employee. That presumption, however, is only juris tantum, not juris et de jure. Their only possible defense is that they exercised all the diligence if a good father of a family to prevent the damage. The diligence of the good father referred to means the diligence in the selection and supervision of employees. 4. Mrs. Bucket has lodged a formal complaint about the actions of Billy Bond and is demanding she is compensated for what he subjected her to. Advise the Board as to any legal action Mrs. Bucket could instigate against Billy and GGC Ltd. and the likelihood of any outcome should she decide to sue. Answer: The Board must realize that they are solidarily liable with Billy Bond because there is an employee-employer relationship. During the time Billy Bond accosted Mrs. Bucket he was in the performance of his duties. When the employee causes damage due to his own negligence while performing his own duties, there arises the juris tantum presumption that the employer is negligent , rebuttable only by proof of observance of the diligence of a good father of a family. The failure to rebut such legal presumption of negligence in the selection and supervision of employees, the employer is Serapio 7 likewise responsible for damages on the basis of the liability being the relationship of pater familias or on the employer’s own negligence. Due diligence in the supervision of employees on the other hand, includes the formulation of suitable rules and regulations for the guidance of employees and the issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his or its employees and the imposition of necessary disciplinary measures upon employees in case a breach or as may be warranted to ensure the performance of acts indispensable to the business of and beneficial to their employer. Also, actual implementation and monitoring of consistent compliance with said rules should be the constant concern of the employer, acting through dependable supervisors, who should regularly report on their supervisory functions. Mrs. Bucket can file for moral damages which includes physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant’s wrongful act for omission. The political, social, financial status of the offended, Mrs Bucket as well as the business and financial standing of the offender, Bill Bond shall be looked upon. The degree of anguish of Mrs. Bucket shall also be looked upon. Moral damages are not punitive in nature but are designed tp compensate and alleviate in some way the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury unjustly caused to a person. Although incapable of pecuniary computation, moral damages, nevertheless, must somehow be proportional to and in approximation of the suffer inflicted. Such damages, to be recoverable, must be the proximate result of a wrongful act or omission the factual basis for which is satisfactorily established by the aggrieved party. Serapio 8 References Sangco, J. C., Philippine Law on Torts and Damages, Vol 1, 1993 Sangco, J.C., Philippine Law on Torts and Damages, Vol. II, 1993 Casas, R. 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