G.R. No. 164749. March 15, 2017.

*
 
ROMULO ABROGAR and ERLINDA ABROGAR, petitioners, vs. COSMOS
BOTTLING COMPANY, INC. and INTERGAMES, INC., respondents.
Remedial Law; Civil Procedure; Appeals; Petition for Review on Certiorari; The
Supreme Court (SC) can proceed to review the factual findings of the Court of
Appeals (CA) as an exception to the general rule that it should not review issues of
fact on appeal on  certiorari.—The Court can proceed to review the factual findings
of the CA as an exception to the general rule that it should not review issues of fact
on appeal on certiorari. We have recognized exceptions to the rule that the findings
of fact of the CA are conclusive and binding in the following instances: (1) when the
findings are grounded entirely on speculation, surmises or conjectures; (2) when the
inference made is manifestly mistaken, absurd or impossible; (3) when there is
grave abuse of discretion; (4) when the judgment is based on a misapprehension of
facts; (5) when the findings of facts are conflicting; (6) when in making its findings
the CA went beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee; (7) when the findings are
contrary to the trial court; (8) when the findings are conclusions without citation of
specific evidence on which they are based; (9) when the facts set forth in the
petition as well as in the petitioner’s main and reply briefs are not disputed by the
respondent; (10) when the findings of fact are premised on the supposed absence
of evidence and contradicted by the evidence on record; and (11) when the CA
manifestly overlooked certain relevant facts not disputed by the parties, which, if
properly considered, would justify a different conclusion. Considering that the CA
arrived at factual findings contrary to those of the trial court, our review of the
records in this appeal should have to be made.
Negligence; Negligence is the failure to observe for the protection of the
interests of another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury.—
Negligence is the failure to observe for the protection of the interests of another
person that degree of care, precaution, and vigilance which the circumstances justly
demand, whereby such other person suffers injury. Under Article 1173 of the Civil
Code, it consists of the “omission of that diligence which is required by the nature of
the obligation and corresponds with the circumstances of the person, of the time
and of the place.” The Civil Code makes liability for negligence clear under Article
2176, and Article 20.
Same; To determine the existence of negligence, the following time-honored
test has been set in Picart v. Smith,  37 Phil. 809 (1918): the test by which to
determine the existence of negligence in a particular case may be stated as follows:
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?
If not, then he is guilty of negligence.—To determine the existence of negligence,
the following time-honored test has been set in Picart v. Smith, 37 Phil. 809 (1918):
The test by which to determine the existence of negligence in a particular case may
be stated as follows: 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? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied by
the imaginary conduct of the discreet  paterfamilias of the Roman law. The
existence of negligence in a given case is not determined by reference to the
personal judgment of the actor in the situation before him. The law considers what
would be reckless, blameworthy, or negligent in the man of ordinary intelligence
and prudence and determines liability by that. The question as to what would
constitute the conduct of a prudent man in a given situation must of course be
always determined in the light of human experience and in view of the facts
involved in the particular case. Abstract speculation cannot here be of much value
but this much can be profitably said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They are not, and are not
supposed to be, omniscient of the future. Hence they can be expected to take care
only when there is something before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee harm as a result of
the course actually pursued? If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable foresight of harm,
followed by the ignoring of the suggestion born of this prevision, is always
necessary before negligence can be held to exist. Stated in these terms,
the proper criterion for determining the existence of negligence in a given
case is this: Conduct is said to be negligent when a prudent man in the
position of the tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable to warrant his foregoing the conduct or
guarding against its consequences.
 Same; Intergames had full awareness of the higher risks involved in staging
the race alongside running vehicles, and had the option to hold the race in a route
where such risks could be minimized, if not eliminated.—Intergames had full
awareness of the higher risks involved in staging the race alongside running
vehicles, and had the option to hold the race in a route where such risks could be
minimized, if not eliminated. But it did not heed the danger already foreseen, if not
expected, and went ahead with staging the race along the plotted route on Don
Mariano Marcos Highway on the basis of its supposedly familiarity with the route.
Such familiarity of the organizer with the route and the fact that previous races had
been conducted therein without any untoward incident were not in themselves
sufficient safeguards. The standards for avoidance of injury through negligence
further required Intergames to establish that it did take adequate measures to avert
the foreseen danger, but it failed to do so.
Same; Another failing on the part of Intergames was the patent inadequacy of
the personnel to man the route.—Another failing on the part of Intergames was the
patent inadequacy of the personnel to man the route. As borne by the records,
Intergames had no personnel of its own for that purpose, and relied exclusively on
the assistance of volunteers, that is, “seven (7) traffic operatives, five (5)
motorcycle policemen, fifteen (15) patrolmen deployed along the route, fifteen (15)
boy scouts, twelve (12) CATs, twenty (20) barangay  tanods, three (3) ambulances
and three (3) medical teams” to ensure the safety of the young runners who would
be running alongside moving vehicular traffic, to make the event safe and well
coordinated.
Same; The evidence presented undoubtedly established that Intergames’
notion of coordination only involved informing the cooperating agencies of the date
of the race, the starting and ending points of the route, and the places along the
route to man.—The evidence presented undoubtedly established that Intergames’
notion of coordination only involved informing the cooperating agencies of the date
of the race, the starting and ending points of the route, and the places along the
route to man. Intergames did not conduct any general assembly with all of them,
being content with holding a few sporadic meetings with the leaders of the
coordinating agencies. It held no briefings of any kind on the actual duties to be
performed by each group of volunteers prior to the race. It did not instruct the
volunteers on how to minimize, if not avert, the risks of danger in manning the race,
despite such being precisely why their assistance had been obtained in the first
place.
Same; Proper coordination in the context of the event did not consist in the
mere presence of the volunteers, but included making sure that they had been
properly instructed on their duties and tasks in order to ensure the safety of the
young runners.—Intergames had no right to assume that the volunteers had already
been aware of what exactly they would be doing during the race. It had the
responsibility and duty to give to them the proper instructions despite their
experience from the past races it had organized considering that the particular race
related to runners of a different level of experience, and involved different weather
and environmental conditions, and traffic situations. It should have remembered
that the personnel manning the race were not its own employees paid to perform
their tasks, but volunteers whose nature of work was remotely associated with the
safe conduct of road races. Verily, that the volunteers showed up and assumed their
proper places or that they were sufficient in number was not really enough. It is
worthy to stress that proper coordination in the context of the event did not consist
in the mere presence of the volunteers, but included making sure that they had
been properly instructed on their duties and tasks in order to ensure the safety of
the young runners.
Same; As the Supreme Court (SC) has emphasized in  Corliss v. The Manila
Railroad Company,  27 SCRA 674 (1969),  where the danger is great, a high degree
of care is necessary, and the failure to observe it is a want of ordinary care under
the circumstances.—It is relevant to note that the participants of the 1st Pop Cola
Junior Marathon were mostly minors aged 14 to 18 years joining a race of that kind
for the first time. The combined factors of their youth, eagerness and inexperience
ought to have put a reasonably prudent organizer on higher guard as to their safety
and security needs during the race, especially considering Intergames’ awareness
of the risks already foreseen and of other risks already known to it as of similar
events in the past organizer. There was no question at all that a higher degree of
diligence was required given that practically all of the participants were children or
minors like Rommel; and that the law imposes a duty of care towards children and
minors even if ordinarily there was no such duty under the same circumstances had
the persons involved been adults of sufficient discretion. In that respect, Intergames
did not observe the degree of care necessary as the organizer, rendering it liable for
negligence. As the Court has emphasized in  Corliss v. The Manila Railroad
Company, 27 SCRA 674 (1969), where the danger is great, a high degree of care is
necessary, and the failure to observe it is a want of ordinary care under the
circumstances.
Same; In order for liability from negligence to arise, there must be not only
proof of damage and negligence, but also proof that the damage was the
consequence of the negligence.—In order for liability from negligence to arise, there
must be not only proof of damage and negligence, but also proof that the damage
was the consequence of the negligence. The Court has said in Vda. de Gregorio v.
Go Chong Bing, 102 Phil. 556 (1957): x x x Negligence as a source of obligation both
under the civil law and in American cases was carefully considered and it was held:
We agree with counsel for appellant that under the Civil Code, as under the
generally accepted doctrine in the United States, the plaintiff in an action such as
that under consideration, in order to establish his right to a recovery, must establish
by competent evidence: (1) Damages to the plaintiff. (2) Negligence by act or
omission of which defendant personally or some person for whose acts it must
respond, was guilty. (3) The connection of cause and effect between the negligence
and the damage. (Taylor v. Manila Electric Railroad and Light Co., supra at p. 15) In
accordance with the decision of the Supreme Court of Spain, in order that a person
may be held guilty for damage through negligence, it is necessary that there be an
act or omission on the part of the person who is to be charged with the liability and
that damage is produced by the said act or omission.
 Proximate Cause; Words and Phrases; Proximate cause  is “that which, in
natural and continuous sequence, unbroken by any new cause, produces an event,
and without which the event would not have occurred.”—We hold that the
negligence of Intergames was the proximate cause despite the intervening
negligence of the jeepney driver. Proximate cause is “that which, in natural and
continuous sequence, unbroken by any new cause, produces an event, and without
which the event would not have occurred.” In Vda. de Bataclan, et al. v. Medina,
102 Phil. 181 91957), the Court, borrowing from American Jurisprudence, has more
extensively defined proximate cause thusly: “* * * ‘that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the
injury and without which the result would not have occurred.’ And more
comprehensively, ‘the proximate legal cause is that acting first and producing the
injury, either immediately or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal connection with
its immediate predecessor, the final event in the chain immediately effecting the
injury as a natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an ordinarily
prudent and intelligent person, have reasonable ground to expect at the moment of
his act or default that an injury to some person might probably result therefrom.’”
 Same; Negligence; To be considered the proximate cause of the injury, the
negligence need not be the event closest in time to the injury; a cause is still
proximate, although farther in time in relation to the injury, if the happening of it
set other foreseeable events into motion resulting ultimately in the damage.—To be
considered the proximate cause of the injury, the negligence need not be the event
closest in time to the injury; a cause is still proximate, although farther in time in
relation to the injury, if the happening of it set other foreseeable events into motion
resulting ultimately in the damage. According to an authority on civil law: “A prior
and remote cause cannot be made the basis of an action, if such remote cause did
nothing more than furnish the condition or give rise to the occasion by which the
injury was made possible, if there intervened between such prior or remote cause
and the injury a distinct, successive, unrelated and efficient cause, even though
such injury would not have happened but for such condition or occasion. If no
damage exists in the condition except because of the independent cause, such
condition was not the proximate cause. And if an independent negligent act or
defective condition sets into operation the circumstances which result in
injury  because of the prior defective condition, such act or condition is the
proximate cause.”
 Same; Same; The negligence of Intergames was the proximate cause of the
death of Rommel; and that the negligence of the jeepney driver was not an efficient
intervening cause.—The negligence of Intergames was the proximate cause of the
death of Rommel; and that the negligence of the jeepney driver was not an efficient
intervening cause. First of all, Intergames’ negligence in not conducting the race in
a road blocked off from vehicular traffic, and in not properly coordinating the
volunteer personnel manning the marathon route effectively set the stage for the
injury complained of. The submission that Intergames had previously conducted
numerous safe races did not persuasively demonstrate that it had exercised due
diligence because, as the trial court pointedly observed, “[t]hey were only lucky
that no accident occurred during the previous marathon races but still the danger
was there.” Secondly, injury to the participants arising from an unfortunate
vehicular accident on the route was an event known to and foreseeable by
Intergames, which could then have been avoided if only Intergames had acted with
due diligence by undertaking the race on a blocked-off road, and if only Intergames
had enforced and adopted more efficient supervision of the race through its
volunteers. And, thirdly, the negligence of the jeepney driver, albeit an intervening
cause, was not efficient enough to break the chain of connection between the
negligence of Intergames and the injurious consequence suffered by Rommel. An
intervening cause, to be considered efficient, must be “one not produced by a
wrongful act or omission, but independent of it, and adequate to bring the injurious
results. Any cause intervening between the first wrongful cause and the final injury
which might reasonably have been foreseen or anticipated by the original
wrongdoer is not such an efficient intervening cause as will relieve the original
wrong of its character as the proximate cause of the final injury.”
 Doctrine of Assumption of Risk; Words and Phrases; The doctrine of
assumption of risk means that one who voluntarily exposes himself to an obvious,
known and appreciated danger assumes the risk of injury that may result
therefrom.—The doctrine of assumption of risk means that one who voluntarily
exposes himself to an obvious, known and appreciated danger assumes the risk of
injury that may result therefrom. It rests on the fact that the person injured
has consented to relieve the defendant of an obligation of conduct toward him and
to take his chance of injury from a known risk, and whether the former has
exercised proper caution or not is immaterial. In other words, it is based on
voluntary consent, express or implied, to accept danger of a known and appreciated
risk; it may sometimes include acceptance of risk arising from the defendant’s
negligence, but one does not ordinarily assume risk of any negligence which he
does not know and appreciate. As a defense in negligence cases, therefore, the
doctrine requires the concurrence of three elements, namely: (1) the plaintiff must
know that the risk is present; (2) he must further understand its nature; and (3) his
choice to incur it must be free and voluntary. According to Prosser: “Knowledge of
the risk is the watchword of assumption of risk.”
Proximate Cause; Cosmos’ mere sponsorship of the race was, legally speaking,
too remote to be the efficient and proximate cause of the injurious consequences.—
We uphold the finding by the CA that the role of Cosmos was to pursue its corporate
commitment to sports development of the youth as well as to serve the need for
advertising its business. In the absence of evidence showing that Cosmos had a
hand in the organization of the race, and took part in the determination of the route
for the race and the adoption of the action plan, including the safety and security
measures for the benefit of the runners, we cannot but conclude that the
requirement for the direct or immediate causal connection between the financial
sponsorship of Cosmos and the death of Rommel simply did not exist. Indeed,
Cosmos’ mere sponsorship of the race was, legally speaking, too remote to be the
efficient and proximate cause of the injurious consequences.
Exemplary Damages; Article 2231 of the  Civil Code  stipulates that exemplary
damages are to be awarded in cases of quasi-delict if the defendant acted with
gross negligence.—Article 2231 of the Civil Code stipulates that exemplary
damages are to be awarded in cases of quasi-delict if the defendant acted with
gross negligence. The foregoing characterization by the RTC indicated that
Intergames’ negligence was gross. We agree with the characterization. Gross
negligence, according to Mendoza v. Spouses Gomez, 726 SCRA 505 (2014), is the
absence of care or diligence as to amount to a reckless disregard of the safety of
persons or property; it evinces a thoughtless disregard of consequences without
exerting any effort to avoid them. Indeed, the failure of Intergames to adopt the
basic precautionary measures for the safety of the minor participants like Rommel
was in reckless disregard of their safety. Conduct is reckless when it is an extreme
departure from ordinary care, in a situation in which a high degree of danger is
apparent; it must be more than any mere mistake resulting from inexperience,
excitement, or confusion, and more than mere thoughtlessness or inadvertence, or
simple inattention.
Loss of Earning Capacity; Damages for loss of earning capacity may be
awarded to the heirs of a deceased nonworking victim simply because earning
capacity, not necessarily actual earning, may be lost.—The RTC did not recognize
the right of the petitioners to recover the loss of earning capacity of Rommel. It
should have, for doing so would have conformed to jurisprudence whereby the
Court has unhesitatingly allowed such recovery in respect of children, students and
other nonworking or still unemployed victims. The legal basis for doing so is Article
2206(1) of the Civil Code, which stipulates that the defendant “shall be liable for the
loss of the earning capacity of the deceased, and the indemnity shall be paid to the
heirs of the latter; such indemnity shall in every case be assessed and awarded by
the court, unless the deceased on account of permanent physical disability not
caused by the defendant, had no earning capacity at the time of his death.” Indeed,
damages for loss of earning capacity may be awarded to the heirs of a deceased
nonworking victim simply because earning capacity, not necessarily actual earning,
may be lost.
Same; The basis for the computation of earning capacity is not what he would
have become or what he would have wanted to be if not for his untimely death, but
the minimum wage in effect at the time of his death.—The petitioners sufficiently
showed that Rommel was, at the time of his untimely but much lamented death,
able-bodied, in good physical and mental state, and a student in good standing. It
should be reasonable to assume that Rommel would have finished his schooling and
would turn out to be a useful and productive person had he not died. Under the
foregoing jurisprudence, the petitioners should be compensated for losing Rommel’s
power or ability to earn. The basis for the computation of earning capacity is not
what he would have become or what he would have wanted to be if not for his
untimely death, but the minimum wage in effect at the time of his death. The
formula for this purpose is: Net Earning Capacity = Life Expectancy x [Gross Annual
Income Less Necessary Living Expenses].
  Same; Life Expectancy Formula; Life expectancy is equivalent to two-thirds
(2/3) multiplied by the difference of eighty (80) and the age of the deceased.—Life
expectancy is equivalent to 2/3 multiplied by the difference of 80 and the age of the
deceased. Since Rommel was 18 years of age at the time of his death, his life
expectancy was 41 years. His projected gross annual income, computed based on
the minimum wage for workers in the nonagricultural sector in effect at the time of
his death, then fixed at P14.00/day, is P5,535.83. Allowing for necessary living
expenses of 50% of his projected gross annual income, his total net earning
capacity is P113,484.52.
Interest Rates; Article 2211 of the  Civil Code expressly provides that interest,
as a part of damages, may be awarded in crimes and quasi-delicts at the discretion
of the court.—Article 2211 of the Civil Code expressly provides that interest, as a
part of damages, may be awarded in crimes and quasi-delicts at the discretion of
the court. The rate of interest provided under Article 2209 of the Civil Code is
6% per annum in the absence of stipulation to the contrary. The legal interest rate
of 6% per annum is to be imposed upon the total amounts herein awarded from the
time of the judgment of the RTC on May 10, 1991 until finality of judgment.
Moreover, pursuant to Article 2212 of the  Civil Code, the legal interest rate of
6% per annum is to be further imposed on the interest earned up to the time this
judgment of the Court becomes final and executory until its full satisfaction.
Attorney’s Fees; Article 2208 of the Civil Code expressly allows the recovery of
attorney’s fees and expenses of litigation when exemplary damages have been
awarded.—Article 2208 of the Civil Code expressly allows the recovery of attorney’s
fees and expenses of litigation when exemplary damages have been awarded.
Thus, we uphold the RTC’s allocation of attorney’s fees in favor of the petitioners
equivalent to 10% of the total amount to be recovered, inclusive of the damages for
loss of earning capacity and interests, which we consider to be reasonable under
the circumstances.
 
BERSAMIN, J.:
This case involves a claim for damages arising from the negligence
causing the death of a participant in an organized marathon bumped by a
passenger jeepney on the route of the race. The issues revolve on whether
the organizer and the sponsor of the marathon were guilty of negligence,
and, if so, was their negligence the proximate cause of the death of the
participant; on whether the negligence of the driver of the passenger
jeepney was an efficient intervening cause; on whether the doctrine of
assumption of risk was applicable to the fatality; and on whether the heirs of
the fatality can recover damages for loss of earning capacity of the latter
who, being then a minor, had no gainful employment.
 
The Case
 
By this appeal, the parents of the late Rommel Abrogar (Rommel), a
marathon runner, seek the review and reversal of the decision promulgated
on March 10, 2004,1 whereby the Court of Appeals (CA) reversed and set
aside the judgment rendered in their favor on May 10, 1991 by the Regional
Trial Court (RTC), Branch 83, in Quezon City 2 finding and declaring
respondents Cosmos Bottling Company (Cosmos), a domestic soft drinks
company whose products included Pop Cola, and Intergames, Inc.
(Intergames), also a domestic corporation organizing and supervising the
“1st Pop Cola Junior Marathon” held on June 15, 1980 in Quezon City,
solidarily liable for damages arising from the untimely death of Rommel,
then a minor 18 years of age, 3 after being bumped by a recklessly driven
passenger jeepney along the route of the marathon.
 
Antecedents
 
The CA narrated the antecedents in the assailed judgment,4 viz.:
[T]o promote the sales of “Pop Cola,” defendant Cosmos, jointly with Intergames,
organized an endurance running contest billed as the “1st Pop Cola Junior
Marathon” scheduled to be held on June 15, 1980. The organizers plotted a 10-
kilometer course starting from the premises of the Interim Batasang Pambansa (IBP
for brevity), through public roads and streets, to end at the Quezon Memorial Circle.
Plaintiffs’ son Rommel applied with the defendants to be allowed to participate in
the contest and after complying with defendants’ requirements, his application was
accepted and he was given an official number. Consequently, on June 15, 1980 at
the designated time of the marathon, Rommel joined the other participants and ran
the course plotted by the defendants. As it turned out, the plaintiffs’ (sic) further
alleged, the defendants failed to provide adequate safety and precautionary
measures and to exercise the diligence required of them by the nature of their
undertaking, in that they failed to insulate and protect the participants of the
marathon from the vehicular and other dangers along the marathon route. Rommel
was bumped by a jeepney that was then running along the route of the marathon
on Don Mariano Marcos Avenue (DMMA for brevity), and in spite of medical
treatment given to him at the Ospital ng Bagong Lipunan, he died later that same
day due to severe head injuries.
 
On October 28, 1980, the petitioners sued the respondents in the then
Court of First Instance of Rizal (Quezon City) to recover various damages for
the untimely death of Rommel (i.e., actual and compensatory damages, loss
of earning capacity, moral damages, exemplary damages, attorney’s fees
and expenses of litigation).5
Cosmos denied liability, insisting that it had not been the organizer of the
marathon, but only its sponsor; that its participation had been limited to
providing financial assistance to Intergames; 6 that the financial assistance it
had extended to Intergames, the sole organizer of the marathon, had been in
answer to the Government’s call to the private sector to help promote sports
development and physical fitness;7 that the petitioners had no cause of
action against it because there was no privity of contract between the
participants in the marathon and Cosmos; and that it had nothing to do with
the organization, operation and running of the event.8
As counterclaim, Cosmos sought attorney’s fees and expenses of litigation
from the petitioners for their being unwarrantedly included as a defendant in
the case. It averred a cross-claim against Intergames, stating that the latter
had guaranteed to hold Cosmos “completely free and harmless from any
claim or action for liability for any injuries or bodily harm which may be
sustained by any of the entries in the ‘1st Pop Cola Junior Marathon’ or for
any damage to the property or properties of third parties, which may
likewise arise in the course of the race.” 9 Thus, Cosmos sought to hold
Intergames solely liable should the claim of the petitioners prosper.10
On its part, Intergames asserted that Rommel’s death had been an
accident exclusively caused by the negligence of the jeepney driver; that it
was not responsible for the accident; that as the marathon organizer, it did
not assume the responsibilities of an insurer of the safety of the participants;
that it nevertheless caused the participants to be covered with accident
insurance, but the petitioners refused to accept the proceeds thereof; 11 that
there could be no cause of action against it because the acceptance and
approval of Rommel’s application to join the marathon had been conditioned
on his waiver of all rights and causes of action arising from his participation
in the marathon;12 that it exercised due diligence in the conduct of the race
that the circumstances called for and was appropriate, it having availed of all
its know-how and expertise, including the adoption and implementation of all
known and possible safety and precautionary measures in order to protect
the participants from injuries arising from vehicular and other forms of
accidents;13 and accordingly, the complaint should be dismissed.
In their reply and answer to counterclaim, the petitioners averred that
contrary to its claims, Intergames did not provide adequate measures for the
safety and protection of the race participants, considering that motor
vehicles were traversing the race route and the participants were made to
run along the flow of traffic, instead of against it; that Intergames did not
provide adequate traffic marshals to secure the safety and protection of the
participants;14 that Intergames could not limit its liability on the basis of the
accident insurance policies it had secured to cover the race participants; that
the waiver signed by Rommel could not be a basis for denying liability
because the same was null and void for being contrary to law, morals,
customs and public policy;15 that their complaint sufficiently stated a cause of
action because in no way could they be held liable for attorney’s fees,
litigation expenses or any other relief due to their having abided by the law
and having acted honestly, fairly, in good faith by according to Intergames
its due, as demanded by the facts and circumstances.16
At the pretrial held on April 12, 1981, the parties agreed that the principal
issue was whether or not Cosmos and Intergames were liable for the death of
Rommel because of negligence in conducting the marathon.17
 
Judgment of the RTC
 
In its decision dated May 10, 1991,18 the RTC ruled as follows:
WHEREFORE, judgment is hereby rendered in favor of plaintiffs-spouses Romulo
Abrogar and Erlinda Abrogar and against defendants Cosmos Bottling Company, Inc.
and Intergames, Inc., ordering both defendants, jointly and severally, to pay and
deliver to the plaintiffs the amounts of Twenty Eight Thousand Sixty-One Pesos and
Sixty-Three Centavos (P28,061.63) as actual damages; One Hundred Thousand
Pesos (P100,000.00) as moral damages; Fifty Thousand Pesos (P50,000.00) as
exemplary damages and Ten Percent (10%) of the total amount of One Hundred
Seventy-Eight Thousand Sixty-One Pesos and Sixty-Three Centavos (P178,061,63)
or Seventeen Thousand Eight Hundred Six Pesos and Sixteen Centavos (P17,806.16)
as attorney’s fees.
On the cross-claim of defendant Cosmos Bottling Company, Inc., defendant
Intergames, Inc., is hereby ordered to reimburse to the former any and all amounts
which may be recovered by the plaintiffs from it by virtue of this Decision.
SO ORDERED.
 
The RTC observed that the safeguards allegedly instituted by Intergames
in conducting the marathon had fallen short of the yardstick to satisfy the
requirements of due diligence as called for by and appropriate under the
circumstances; that the accident had happened because of inadequate
preparation and Intergames’ failure to exercise due diligence; 19 that the
respondents could not be excused from liability by hiding behind the waiver
executed by Rommel and the permission given to him by his parents
because the waiver could only be effective for risks inherent in the
marathon, such as stumbling, heat stroke, heart attack during the race,
severe exhaustion and similar occurrences; 20 that the liability of the
respondents towards the participants and third persons was solidary,
because Cosmos, the sponsor of the event, had been the principal mover of
the event, and, as such, had derived benefits from the marathon that in turn
had carried responsibilities towards the participants and the public; that the
respondents’ agreement to free Cosmos from any liability had
been an agreement binding only between them, and did not bind third
persons; and that Cosmos had a cause of action against Intergames for
whatever could be recovered by the petitioners from Cosmos.21
 
Decision of the CA
 
All the parties appealed to the CA.
The petitioners contended that the RTC erred in not awarding damages for
loss of earning capacity on the part of Rommel for the reason that such
damages were not recoverable due to Rommel not yet having finished his
schooling; and that it would be premature to award such damages upon the
assumption that he would finish college and be gainfully employed.22
On their part, Cosmos and Intergames separately raised essentially similar
errors on the part of the RTC, to wit: (1) in holding them liable for the death
of Rommel; (2) in finding them negligent in conducting the marathon; (3) in
holding that Rommel and his parents did not assume the risks of the
marathon; (4) in not holding that the sole and proximate cause of the death
of Rommel was the negligence of the jeepney driver; and (5) in making them
liable, jointly and solidarily, for damages, attorney’s fees and expenses of
litigation.23
The CA reduced the issues to four, namely:
1. Whether or not appellant Intergames was negligent in its conduct of the
“1st Pop Cola Junior Marathon” held on June 15, 1980 and if so, whether its
negligence was the proximate cause of the death of Rommel Abrogar.
2. Whether or not appellant Cosmos can be held jointly and solidarily liable with
appellant Intergames for the death of Rommel Abrogar, assuming that appellant
Intergames is found to have been negligent in the conduct of the Pop Cola
marathon and such negligence was the proximate cause of the death of Rommel
Abrogar.
3. Whether or not the appellants Abrogar are entitled to be compensated for
the “loss of earning capacity” of their son Rommel.
4. Whether or not the appellants Abrogar are entitled to the actual, moral, and
exemplary damages granted to them by the Trial Court. 24

 
In its assailed judgment promulgated on March 10, 2004, 25 the CA ruled as
follows:
As to the first issue, this Court finds that appellant Intergames was not negligent
in organizing the said marathon.
Negligence is the omission to do something which a reasonable man, guided
upon those considerations which ordinarily regulate the conduct to human affairs,
would do, or doing something which a prudent and reasonable man would not do.
The whole theory of negligence presuppose some uniform standard of behavior
which must be an external and objective one, rather than the individual judgment
good or bad, of the particular actor; it must be, as far as possible, the same for all
persons; and at the same time make proper allowance for the risk apparent to the
actor for his capacity to meet it, and for the circumstances under which he must
act.
The question as to what would constitute the conduct of a prudent man in a
given situation must of course be always determined in the light of human
experience and of the acts involved in the particular case.
In the case at bar, the trial court erred in finding that the appellant Intergames
failed to satisfy the requirements of due diligence in the conduct of the race.
The trial court in its decision said that the accident in question could have been
avoided if the route of the marathon was blocked off from the regular traffic,
instead of allowing the runners to run together with the flow of traffic. Thus, the said
court considered the appellant Intergames at fault for proceeding with the
marathon despite the fact that the Northern Police District, MPF, Quezon City did
not allow the road to be blocked off from traffic.
This Court finds that the standard of conduct used by the trial court is not the
ordinary conduct of a prudent man in such a given situation. According to the said
court, the only way to conduct a safe road race is to block off the traffic for the
duration of the event and direct the cars and public utilities to take alternative
routes in the meantime that the marathon event is being held. Such standard is too
high and is even inapplicable in the case at bar because, there is no alternative
route from IBP to Don Mariano Marcos to Quezon City Hall.
 The Civil Code provides that if the law or contract does not state the diligence
which is to be observed in the performance of an obligation that which is expected
of a good father of the family shall only be required. Accordingly, appellant
Intergames is only bound to exercise the degree of care that would be exercised by
an ordinarily careful and prudent man in the same position and circumstances and
not that of the cautious man of more than average prudence. Hence, appellant
Intergames is only expected to observe ordinary diligence and not extraordinary
diligence.
In this case, the marathon was allowed by the Northern Police District, MPF,
Quezon City on the condition that the road should not be blocked off from traffic.
Appellant Intergames had no choice. It had to comply with it or else the said
marathon would not be allowed at all.
The trial court erred in contending that appellant Intergames should have looked
for alternative places in Metro Manila given the condition set by the Northern Police
District, MPF, Quezon City; precisely because as Mr. Jose Castro has testified the
said route was found to be the best route after a careful study and consideration of
all the factors involved. Having conducted several marathon events in said route,
appellant Intergames as well as the volunteer groups and the other agencies
involved were in fact familiar with the said route. And assuming that there was an
alternative place suitable for the said race, the question is would they be allowed to
block off the said road from traffic?
Also, the trial court erred in stating that there was no adequate number of
marshals, police officers and personnel to man the race so as to prevent injury to
the participants.
The general rule is that the party who relies on negligence for his cause of action
has the burden of proving the existence of the same, otherwise his action fails.
Here, the appellants-spouses failed to prove that there was inadequate number
of marshals, police officers, and personnel because they failed to prove what
number is considered adequate.
This court considers that seven (7) traffic operatives, five (5) motorcycle
policemen, fifteen (15) patrolmen deployed along the route, fifteen (15) boyscouts,
twelve (12) CATs, twenty (20) barangay tanods, three (3) ambulances and three (3)
medical teams were sufficient to stage a safe marathon.
Moreover, the failure of Mr. Jose R. Castro, Jr. to produce records of the lists of
those constituting the volunteer help during the marathon is not fatal to the case
considering that one of the volunteers, Victor Landingin of the Citizens Traffic Action
(CTA) testified in court that CTA fielded five units on June 15, 1980, assigned as
follows: (1) at the sphere head; (2) at the finish line; (3) tail ender; (4) & (5) roving.
The trial court again erred in concluding that the admission of P/Lt. Jesus Lipana,
head of the traffic policemen assigned at the marathon, that he showed up only at
the finish line means that he did not bother to check on his men and did not give
them appropriate instructions. P/Lt. Lipana in his testimony explained that he did
not need to be in the start of the race because he had predesignated another
capable police officer to start the race.
In addition, this Court finds that the precautionary measures and preparations
adopted by appellant Intergames were sufficient considering the circumstances
surrounding the case.
Appellant Intergames, using its previous experiences in conducting safe and
successful road races, took all the necessary precautions and made all the
preparations for the race. The initial preparations included: determination of the
route to be taken; and an ocular inspection of the same to see if it was well-paved,
whether it had less corners for easy communication and coordination, and whether
it was wide enough to accommodate runners and transportation. Appellant
Intergames choose the Don Mariano Marcos Avenue primarily because it was well-
paved; had wide lanes to accommodate runners and vehicular traffic; had less
corners thus facilitating easy communication and coordination among the
organizers and cooperating agencies; and was familiar to the race organizers and
operating agencies. The race covered a ten-kilometer course from the IBP lane to
the Quezon City Hall Compound passing through the Don Mariano Marcos Avenue,
which constituted the main stretch of the route. Appellant Intergames scheduled
the marathon on a Sunday morning, when traffic along the route was at its lightest.
Permission was sought from the then Quezon City Mayor Adelina Rodriguez for the
use of the Quezon City Hall Grandstand and the street fronting it as the finish line.
Police assistance was also obtained to control and supervise the traffic. The Quezon
City Traffic Detachment took charge of traffic control by assigning policemen to the
traffic route. The particular unit assigned during the race underwent extensive
training and had been involved in past marathons, including marathons in highly
crowded areas. The Philippine Boy Scouts tasked to assist the police and monitor
the progress of the race; and Citizens Traffic Action Group tasked with the
monitoring of the race, which assigned five units consisting often operatives, to
provide communication and assistance were likewise obtained. Finally, medical
equipments and personnel were also requested from Camp Aguinaldo, the
Philippine Red Cross and the Hospital ng Bagong Lipunan.
Neither does this Court find the appellant Intergames’ conduct of the marathon
the proximate cause of the death of Rommel Abrogar. Proximate cause has been
defined as that which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without which the result would not
have occurred.
It appears that Rommel Abrogar, while running on Don Mariano Marcos Avenue
and after passing the Philippine Atomic Energy Commission Building, was bumped
by a jeepney which apparently was racing against a minibus and the two vehicles
were trying to crowd each other. In fact, a criminal case was filed against the
jeepney driver by reason of his having killed Rommel Abrogar.
This proves that the death of Rommel Abrogar was caused by the negligence of
the jeepney driver. Rommel Abrogar cannot be faulted because he was performing
a legal act; the marathon was conducted with the permission and approval of all the
city officials involved. He had the right to be there. Neither can the appellant
Intergames be faulted, as the organizer of the said marathon, because it was not
negligent in conducting the marathon.
Given the facts of this case, We believe that no amount of precaution can
prevent such an accident. Even if there were fences or barriers to separate the
lanes for the runners and for the vehicles, it would not prevent such an accident in
the event that a negligent driver loses control of his vehicle. And even if the road
was blocked off from traffic, it would still not prevent such an accident, if a jeepney
driver on the other side of the road races with another vehicle loses control of his
wheel and as a result hits a person on the other side of the road. Another way of
saying this is: A defendant’s tort cannot be considered a legal cause of plaintiff’s
damage if that damage would have occurred just the same even though the
defendant’s tort had not been committed.
 This Court also finds the doctrine of assumption of risk applicable in the case at
bar. As explained by a well-known authority on torts:
“The general principle underlying the defense of assumption of risk is that a
plaintiff who voluntarily assumes a risk of harm arising from the negligent or
reckless conduct of the defendant cannot recover for such harm. The defense
may arise where a plaintiff, by contract or otherwise, expressly agrees to
accept a risk or harm arising from the defendant’s conduct, or where a plaintiff
who fully understands a risk or harm caused by the defendant’s conduct, or by
a condition created by the defendant, voluntarily chooses to enter or remain,
or to permit his property to enter or remain, within the area of such risk, under
circumstances manifesting his willingness to accept the risk.
x x x x
Assumption of the risk in its primary sense arises by assuming through
contract, which may be implied, the risk of a known danger. Its essence is
venturousness. It implies intentional exposure to a known danger; It embraces
a mental state of willingness; It pertains to the preliminary conduct of getting
into a dangerous employment or relationship, it means voluntary incurring the
risk of an accident, which may or may not occur, and which the person
assuming the risk may be careful to avoid; and it defeats recovery because it
is a previous abandonment of the right to complain if an accident occurs.
Of course, if the defense is predicated upon an express agreement the
agreement must be valid, and in the light of this qualification the rule has
been stated that a plaintiff who, by contract or otherwise, expressly agreed to
accept a risk of harm arising from the defendant’s negligent or reckless
conduct, cannot recover for such harm unless the agreement is invalid as
contrary to public policy.
x x x x
The defense of assumption of risk presupposes: (1) that the plaintiff had
actual knowledge of the danger; (2) that he understood and appreciated the
risk from the danger; and (3) that he voluntarily exposed himself to such risk.
x x x
The term ‘risk’ as used in this connection applies to known dangers, and not
to things from which danger may possibly flow. The risk referred to is the
particular risk, or one of the risks, which the plaintiff accepted within the
context of the situation in which he placed himself and the question is whether
the specific conduct or condition which caused the injury was such a risk.”
In this case, appellant Romulo Abrogar himself admitted that his son, Rommel
Abrogar, surveyed the route of the marathon and even attended a briefing before
the race. Consequently, he was aware that the marathon would pass through a
national road and that the said road would not be blocked off from traffic. And
considering that he was already eighteen years of age, had voluntarily participated
in the marathon, with his parents’ consent, and was well aware of the traffic
hazards along the route, he thereby assumed all the risks of the race. This is
precisely why permission from the participant’s parents, submission of a medical
certificate and a waiver of all rights and causes of action arising from the
participation in the marathon which the participant or his heirs may have against
appellant Intergames were required as conditions in joining the marathon.
In the decision of the trial court, it stated that the risk mentioned in the waiver
signed by Rommel Abrogar only involved risks such as stumbling, suffering
heatstroke, heart attack and other similar risks. It did not consider vehicular
accident as one of the risks included in the said waiver.
This Court does not agree. With respect to voluntary participation in a sport, the
doctrine of assumption of risk applies to any facet of the activity inherent in it and
to any open and obvious condition of the place where it is carried on. We believe
that the waiver included vehicular accidents for the simple reason that it was a road
race run on public roads used by vehicles. Thus, it cannot be denied that vehicular
accidents are involved. It was not a track race which is held on an oval and
insulated from vehicular traffic. In a road race, there is always the risk of runners
being hit by motor vehicles while they train or compete. That risk is inherent in the
sport and known to runners. It is a risk they assume every time they voluntarily
engage in their sport.
Furthermore, where a person voluntarily participates in a lawful game or contest,
he assumes the ordinary risks of such game or contest so as to preclude recovery
from the promoter or operator of the game or contest for injury or death resulting
therefrom. Proprietors of amusements or of places where sports and games are
played are not insurers of safety of the public nor of their patrons.
In Mc Leod Store v. Vinson, 213 Ky 667, 281 SW 799 (1926), it was held that a
boy, seventeen years of age, of ordinary intelligence and physique, who entered a
race conducted by a department store, the purpose of which was to secure guinea
fowl which could be turned in for cash prizes, had assumed the ordinary risks
incident thereto and was barred from recovering against the department store for
injuries suffered when, within catching distance, he stopped to catch a guinea, and
was tripped or stumbled and fell to the pavement, six or eight others falling upon
him. The court further said: “In this (the race) he was a voluntary participant. x x x
The anticipated danger was as obvious to him as it was to appellant (the
department store). While not an adult, he was practically 17 years of age, of
ordinary intelligence, and perfectly able to determine the risks ordinarily incident to
such games. An ordinary boy of that age is practically as well advised as to the
hazards of baseball, basketball, football, foot races and other games of skill and
endurance as is an adult x x x.”
In the case at bar, the “1st Pop Cola Junior Marathon” held on June 15, 1980 was
a race the winner of which was to represent the country in the annual Spirit of
Pheidippides Marathon Classic in Greece, if he equals or breaks the 29-minute mark
for the 10-km. race. Thus, Rommel Abrogar having voluntarily participated in the
race, with his parents’ consent, assumed all the risks of the race.
Anent the second issue, this Court finds that appellant Cosmos must also be
absolved from any liability in the instant case.
This Court finds that the trial court erred in holding appellant Cosmos liable for
being the principal mover and resultant beneficiary of the event.
In its decision it said that in view of the fact that appellant Cosmos will be
deriving certain benefits from the marathon event, it has the responsibility to
ensure the safety of all the participants and the public. It further said that the
stipulations in the contract entered into by the two appellants, Cosmos and
Intergames, relieving the former from any liability does not bind third persons.
This Court does not agree with the reasoning of the trial court. The sponsorship
contract entered between appellant Cosmos and appellant Intergames specifically
states that:
1. COSMOS BOTTLING CORPORATION shall pay INTERGAMES the amount of
FIFTY-FIVE THOUSAND PESOS (P55,000.00) representing full sponsorship fee
 and in consideration thereof, INTERGAMES shall organize and stage a
marathon race to be called “1st POP COLA JUNIOR MARATHON.”
x x x x
3. INTERGAMES shall draw up all the rules of the marathon race, eligibility
requirements of participants as well as provide all the staff required in the
organization and actual staging of the race. It is understood that all said staff
shall be considered under the direct employ of INTERGAMES which shall have
full control over them.
x x x x
5. INTERGAMES shall secure all the necessary permits, clearances, traffic
and police assistance in all the areas covered by the entire route of the
“1st POP COLA JUNIOR MARATHON.”
x x x x
12. INTERGAMES shall hold COSMOS BOTTLING CORPORATION, completely
free and harmless from any claim or action for liability for any injuries or bodily
harm which may be sustained by any of the entries in the “1st  POP COLA
JUNIOR MARATHON,” or for any damages to the property or properties of third
parties, which may likewise arise in the course of the race.
From the foregoing, it is crystal clear that the role of the appellant Cosmos was
limited to providing financial assistance in the form of sponsorship. Appellant
Cosmos’ sponsorship was merely in pursuance to the company’s commitment for
sports development of the youth as well as for advertising purposes. The use of the
name Cosmos was done for advertising purposes only; it did not mean that it was
an organizer of the said marathon. As pointed out by Intergames’ President, Jose
Castro, Jr., appellant Cosmos did not even have the right to suggest the location and
the number of runners.
To hold a defendant liable for torts, it must be clearly shown that he is the
proximate cause of the harm done to the plaintiff. The nexus or connection of the
cause and effect, between a negligent act and the damage done, must be
established by competent evidence.
In this case, appellant Cosmos was not negligent in entering into a contract with
the appellant Intergames considering that the record of the latter was clean and
that it has conducted at least thirty (30) road races.
Also there is no direct or immediate causal connection between the financial
sponsorship and the death of Rommel Abrogar. The singular act of providing
financial assistance without participating in any manner in the conduct of the
marathon cannot be palmed off as such proximate cause. In fact, the appellants-
spouses never relied on any representation that Cosmos organized the race. It was
not even a factor considered by the appellants-spouses in allowing their son to join
said marathon.
In view of the fact that both defendants are not liable for the death of Rommel
Abrogar, appellants-spouses are not entitled to actual, moral, exemplary damages
as well as for the “loss of earning capacity” of their son. The third and fourth issues
are thus moot and academic.
UPON THE VIEW WE TAKE OF THIS CASE, THUS, the judgment appealed
from must be, as it hereby is, REVERSED and SET ASIDE, and another
entered DISMISSING the complaint a quo. The appellants shall bear their
respective costs.
SO ORDERED. 26
  
Issues
 
In this appeal, the petitioners submit that the CA gravely erred:
A.
x x x in reversing the RTC Decision, (and) in holding that respondent Intergames
was not negligent considering that:
1. Respondent Intergames failed to exercise the diligence of a good father of the
family in the conduct of the marathon in that it did not block off from traffic the
marathon route; and
2. Respondent Intergames’ preparations for the race, including the number of
marshal during the marathon, were glaringly inadequate to prevent the happening
of the injury to its participants.
 
B.
x x x in reversing the RTC Decision, (and) in holding that the doctrine of assumption
of risk finds application to the case at bar even though getting hit or run over by a
vehicle is not an inherent risk in a marathon race. Even assuming arguendo that
deceased Abrogar made such waiver as claimed, still there can be no valid waiver
of one’s right to life and limb for being against public policy.
 
C.
x x x in reversing the RTC Decision, (and) in absolving respondent Cosmos from
liability to petitioners on the sole ground that respondent Cosmos’ contract with
respondent Intergames contained a stipulation exempting the former from liability.
 
D.
x x x in reversing the RTC Decision and consequently holding respondents free from
liability, (and) in not awarding petitioners with actual, moral and exemplary
damages for the death of their child, Rommel Abrogar. 27

Ruling of the Court

 
The appeal is partly meritorious.
 
I
Review of factual issues is allowed because of
the conflict between the findings of fact by the
RTC and the CA on the issue of negligence
 
The petitioners contend that Intergames was negligent; that Cosmos as
the sponsor and Intergames as the organizer of the marathon both had the
obligation to provide a reasonably safe place for the conduct of the race by
blocking the route of the race from vehicular traffic and by providing
adequate manpower and personnel to ensure the safety of the participants;
and that Intergames had foreseen the harm posed by the situation but had
not exercised the diligence of a good father of a family to avoid the
risk;28 hence, for such omission, Intergames was negligent.29
 Refuting, Cosmos and Intergames submit that the latter as the organizer
was not negligent because it had undertaken all the precautionary measures
to ensure the safety of the race; and that there was no duty on the part of
the latter as the organizer to keep a racecourse “free and clear from
reasonably avoidable elements that would [occasion] or have the probable
tendency, to occasion injury.”30
The issue of whether one or both defendants were negligent is a mixed
issue of fact and law. Does this not restrict the Court against reviewing the
records in this appeal on certiorari in order to settle the issue?
The Court can proceed to review the factual findings of the CA as an
exception to the general rule that it should not review issues of fact on
appeal on certiorari. We have recognized exceptions to the rule that the
findings of fact of the CA are conclusive and binding in the following
instances: (1) when the findings are grounded entirely on speculation,
surmises or conjectures; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) when there is grave abuse of discretion;
(4) when the judgment is based on a misapprehension of facts; (5) when the
findings of facts are conflicting; (6) when in making its findings the CA went
beyond the issues of the case, or its findings are contrary to the admissions
of both the appellant and the appellee; (7) when the findings are contrary to
the trial court; (8) when the findings are conclusions without citation of
specific evidence on which they are based; (9) when the facts set forth in the
petition as well as in the petitioner’s main and reply briefs are not disputed
by the respondent; (10) when the findings of fact are premised on the
supposed absence of evidence and contradicted by the evidence on record;
and (11) when the CA manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify a
different conclusion.31 Considering that the CA arrived at factual findings
contrary to those of the trial court, our review of the records in this appeal
should have to be made.
Negligence is the failure to observe for the protection of the interests of
another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby
such other person suffers injury. 32 Under Article 1173 of the Civil Code, it
consists of the “omission of that diligence which is required by the nature of
the obligation and corresponds with the circumstances of the person, of the
time and of the place.”33 The Civil Code makes liability for negligence clear
under Article 2176,34 and Article 20.35
To determine the existence of negligence, the following time-honored test
has been set in Picart v. Smith:36
The test by which to determine the existence of negligence in a particular case
may be stated as follows: 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? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied by
the imaginary conduct of the discreet  paterfamilias of the Roman law. The
existence of negligence in a given case is not determined by reference to the
personal judgment of the actor in the situation be-
_______________

32  Philippine National Railways Corporation v. Vizcara, G.R. No. 190022, February 15, 2012,
666 SCRA 363, 374, citing Layugan v. Intermediate Appellate Court, No. L-73998, November 14,
1988, 167 SCRA 363, 372-373.
33  Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence
which is required by the nature of the obligation and corresponds with the circumstances of the
person, of the time and of the place. When negligence shows bad faith, the provision of Articles
1171 and 2201, paragraph 2, shall apply.
34  Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no
preexisting contractual relation between the parties, is called quasi-delict and is governed by the
provisions of this Chapter.
35  Art. 20. Every person who, contrary to law, willfully or negligently causes damage to
another, shall indemnify the latter for the same.
36  37 Phil. 809 (1918).

 
fore him. The law considers what would be reckless, blameworthy, or negligent in
the man of ordinary intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a
given situation must of course be always determined in the light of human
experience and in view of the facts involved in the particular case. Abstract
speculation cannot here be of much value but this much can be profitably said:
Reasonable men govern their conduct by the circumstances which are before them
or known to them. They are not, and are not supposed to be, omniscient of the
future. Hence, they can be expected to take care only when there is something
before them to suggest or warn of danger. Could a prudent man, in the case
under consideration, foresee harm as a result of the course actually
pursued? If so, it was the duty of the actor to take precautions to guard
against that harm. Reasonable foresight of harm, followed by the ignoring
of the suggestion born of this prevision, is always necessary before
negligence can be held to exist. Stated in these terms, the proper criterion
for determining the existence of negligence in a given case is this:
Conduct is said to be negligent when a prudent man in the position of the
tortfeasor would have foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing the conduct or guarding
against its consequences.  (bold underscoring supplied for emphasis)
37

 
A careful review of the evidence presented, particularly the testimonies of
the relevant witnesses, in accordance with the foregoing guidelines
reasonably leads to the conclusion that the safety and precautionary
measures undertaken by Intergames were short of the diligence demanded
by the circumstances of persons, time and place under consideration. Hence,
Intergames as the organizer was guilty of negligence.
The race organized by Intergames was a junior marathon participated in
by young persons aged 14 to 18 years. It was plotted to cover a distance of
10 kilometers, starting from the IBP Lane,38 then going towards the Batasang
Pambansa, and on to the circular route towards the Don Mariano Marcos
Highway,39 and then all the way back to the Quezon City Hall compound
where the finish line had been set.40 In staging the event, Intergames had no
employees of its own to man the race, 41 and relied only on the “cooperating
agencies” and volunteers who had worked with it in previous races. 42 The
cooperating agencies included the Quezon City police, barangay tanods,
volunteers from the Boy Scouts of the Philippines, the Philippine National Red
Cross, the Citizens Traffic Action Group, and the medical teams of doctors
and nurses coming from the Office of the Surgeon General and the Ospital ng
Bagong Lipunan.43 According to Jose R. Castro, Jr., the President of
Intergames, the preparations for the event included conducting an ocular
inspection of the route of the race, 44 sending out letters to the various
cooperating agencies,45 securing permits from proper authorities, 46 putting up
directional signs,47 and setting up the water stations.48
We consider the “safeguards” employed and adopted by Intergames not
adequate to meet the requirement of due diligence.
For one, the police authorities specifically prohibited Intergames from
blocking Don Mariano Marcos Highway in order not to impair road
accessibility to the residential villages located beyond the IBP
Lane.49 However, contrary to the findings of the CA, 50 Intergames had a choice
on where to stage the marathon, considering its admission of the sole
responsibility for the conduct of the event, including the choice of location.
Moreover, the CA had no basis for holding that “the said route was found
to be the best route after a careful study and consideration of all the factors
involved.”51 Castro, Jr. himself attested that the route had been the best one
only within the vicinity of the Batasang Pambansa, to wit:
COURT
Q Was there any specific reason from. . . Was there any specific reason why you
used this route from Batasan to City Hall? Was there any special reason?
A We have, your Honor, conducted for example the Milo Marathon in that area in
the Batasan Pambansa and we found it to be relatively safer than any other
areas within the vicinity. As a matter of fact, we had more runners in the Milo
Marathon at that time and nothing happened, your Honor. 52

 
The chosen route (IBP Lane, on to Don Mariano Marcos Highway, and then
to Quezon City Hall) was not the only route appropriate for the marathon. In
fact, Intergames came under no obligation to use such route especially
considering that the participants, who were young and inexperienced
runners, would be running alongside moving vehicles.
Intergames further conceded that the marathon could have been staged
on a blocked off route like Roxas Boulevard in Manila where runners could
run against the flow of vehicular traffic.53 Castro, Jr. stated in that regard:
COURT TO WITNESS
Q What law are you talking about when you say I cannot violate the law?
A The police authority, your Honor, would not grant us permit because that is one of
the conditions that if we are to conduct a race we should run the race in
accordance with the flow of traffic.
Q Did you not inform the police this is in accordance with the standard safety
measures for a marathon race?
A I believed we argued along that line but (sic) again, if we insist the police again
would not grant us any permit like. . . except in the case of Roxas Boulevard
when it is normally closed from 8 a.m. when you can run against the flow of
traffic.
Q You were aware for a runner to run on the same route of the traffic would be risky
because he would not know what is coming behind him?
A I believed we talked of the risk, your Honor when the risk has been minimized to a
certain level. Yes, there is greater risk when you run with the traffic than when
you run against the traffic to a certain level, it is correct but most of the races in
Manila or elsewhere are being run in accordance with the flow of the traffic.
x x x x
ATTY. VINLUAN
Q Following the observation of the Court, considering the local condition, you will
agree with me the risks here are greater than in the United States where drivers
on the whole follow traffic rules?
A That is correct.
Q And because of that fact, it is with all the more reason that you should take all
necessary precautions to insure the safety of the runners?
A That is correct.
54

x x x x
COURT:
x x x x
Q In your case in all the marathons that you had managed, how many cases have
you encountered where the routes are blocked off for vehicular traffic?
A These are the International Marathon, Philippines Third World Marathon and the
Milo Marathon. We are blocking them to a certain length of time.
Q What was the purpose of blocking the routes? Is it for the safety of the runners or
just a matter of convenience?
A In blocking off the route, Your Honor, it is light easier for the runners to run
without impediments to be rendered by the people or by vehicles and at the
same time it would be also advantageous if the road will be blocked off for
vehicle traffic permitted to us by the traffic authorities.
Q So, in this case, you actually requested for the traffic authorities to block off the
route?
A As far as I remember we asked Sgt. Pascual to block off the route but considering
that it is the main artery to Fairview Village, it would not be possible to block off
the route since it will cause a lot of inconvenience for the other people in those
areas and jeepney drivers.
Q In other words, if you have your way you would have opted to block off the route.
A Yes, Your Honor.
Q But the fact is that the people did not agree.
A Yes, Your Honor, and it is stated in the permit given to us. 55

 
 Based on the foregoing testimony of Castro, Jr., Intergames had full
awareness of the higher risks involved in staging the race alongside running
vehicles, and had the option to hold the race in a route where such risks
could be minimized, if not eliminated. But it did not heed the danger already
foreseen, if not expected, and went ahead with staging the race along the
plotted route on Don Mariano Marcos Highway on the basis of its supposedly
familiarity with the route. Such familiarity of the organizer with the route and
the fact that previous races had been conducted therein without any
untoward incident56 were not in themselves sufficient safeguards. The
standards for avoidance of injury through negligence further required
Intergames to establish that it did take adequate measures to avert the
foreseen danger, but it failed to do so.
Another failing on the part of Intergames was the patent inadequacy of
the personnel to man the route. As borne by the records, Intergames had no
personnel of its own for that purpose, and relied exclusively on the
assistance of volunteers, that is, “seven (7) traffic operatives, five (5)
motorcycle policemen, fifteen (15) patrolmen deployed along the route,
fifteen (15) boy scouts, twelve (12) CATs, twenty (20) barangay tanods,
three (3) ambulances and three (3) medical teams” 57 to ensure the safety of
the young runners who would be running alongside moving vehicular traffic,
to make the event safe and well coordinated.
Although the party relying on negligence as his cause of action had the
burden of proving the existence of the same, Intergames’ coordination and
supervision of the personnel sourced from the cooperating agencies did not
satisfy the diligence required by the relevant circumstances. In this regard, it
can be pointed out that the number of deployed personnel, albeit sufficient
to stage the marathon, did not per se ensure the safe conduct of the race
without proof that such deployed volunteers had been properly coordinated
and instructed on their tasks.
That the proper coordination and instruction were crucial elements for the
safe conduct of the race was well known to Intergames. Castro, Jr. stated as
much, to wit:
ATTY. LOMBOS:
x x x x
Q You also said that if you block off one side of the road, it is possible that it would
be more convenient to hold the race in that matter. Will you tell the Honorable
Court if it is possible also to hold a race safely if the road is not blocked off?
A Yes, sir.
Q How is it done?
A You can still run a race safely even if it is partially blocked off as long as
you have the necessary cooperation with the police authorities, and the
police assigned along the route of the race and the police assigned
would be there, this will contribute the safety of the participants, and
also the vehicular division, as long as there are substantial publicities in the
newspapers, normally they will take the precautions in the use of the particular
route of the race.
Q Let me clarify this. Did you say that it is possible to hold a marathon safely if you
have this traffic assistance or coordination even if the route is blocked or not
blocked?
 A It is preferable to have the route blocked but in some cases, it would be
impossible for the portions of the road to be blocked totally. The route of the race
could still be safe for runners if a proper coordination or the agencies are notified
especially police detailees to man the particular stage.58

 
Sadly, Intergames’ own evidence did not establish the conduct of proper
coordination and instruction. Castro, Jr. described the action plan adopted by
Intergames in the preparation for the race, as follows:
COURT
A Did you have any rehearsal let us say the race was conducted on June 15, now
before June 15 you call a meeting of all these runners so you can have more or
less a map-up and you would indicate or who will be stationed in their
places, etc. Did you have such a rehearsal?
WITNESS
A It is not being done, your Honor, but you have to specify them. You meet with the
group and you tell them that you wanted them to be placed in their particular
areas which we pointed out to them for example in the case of the Barangay
Tanod, I specifically assigned them in the areas and we sat down and we met.
COURT
Q Did you have any action, plan or brochure which would indicate the assignment of
each of the participating group?
WITNESS
A Normally, sir, many of the races don’t have that except when they called them to
meeting either as a whole group or the entire cooperating agency or meet them
per group.
COURT
Q Did you have a checklist of the activities that would have to be entered before the
actual marathon some kind of system where you will indicate this particular
activity has to be checked, etc. You did not have that?
WITNESS
A Are you asking, your Honor, as a race director of I will check this because if I do
that, I won’t have a race because that is not being done by any race director
anywhere in the world?
COURT
I am interested in your planning activities.
Q In other words, what planning activities did you perform before the actual
marathon?
A The planning activities we had, your honor, was to coordinate with the different
agencies involved informing them where they would be more or less placed.
COURT
Q Let us go to. . . Who was supposed to be coordinating with you as to the citizens
action group who was your. . . you were referring to a person who was supposed
to be manning these people and who was the person whom you coordinate with
the Traffic Action Group?
WITNESS
A I can only remember his name. . . his family name is Esguerra.
Q How about with the Tanods?
A With the Tanods his name is Pedring Serrano.
Q And with the Boys Scouts? (sic)
A And with the Boys Scouts of the Phils. (sic) it is Mr. Greg Panelo.
COURT
Q When did you last meet rather how many times did you meet with Esguerra
before the marathon on June 15?
WITNESS
A The Citizens Traffic Action Group, your Honor, had been with me in previous
races.
COURT
Q I am asking you a specific question. I am not interested in the Citizen Traffic
Action Group. The marathon was on June 15, did you meet with him on June 14,
June 13 or June 12?
A We met once, your Honor, I cannot remember the date.
Q You don’t recall how many days before?
A I cannot recall at the moment.
Q How about with Mr. Serrano, how many times did you meet with him before the
race?
A If my mind does not fail me, your Honor, I met him twice because he lives just
within our area and we always see each other.
Q How about with Panelo, how many times did you meet him?
A With Mr. Panelo, I did not meet with them, your Honor.
Q Was there an occasion where before the race you met with these three people
together since you did not meet with Panelo anytime? Was there anytime where
you met with Serrano and Esguerra together?
WITNESS
A No, your Honor.
COURT
Q When you met once with Esguerra, where did you meet? What place?
A I cannot recall at the moment, your Honor, since it was already been almost six
years ago.
 Q How about Serrano, where did you meet him?
A We met in my place.
Q From your house? He went in your house?
A Yes, your Honor.
Q So you did not have let us say a. . . you don’t have records of your meetings with
these people?
WITNESS
A With the Citizens Traffic Action, your Honor?
COURT
Q Yes.
WITNESS
A I don’t have, your Honor.
COURT
Q Because you are familiar, I was just thinking this is an activity which requires
planning, etc., what I was thinking when you said this was never done in any part
of the world but all activities it has to be planned. There must be some planning,
 now are you saying that in this particular case you had no written plan or
checklist of activities what activities have to be implemented on a certain point
and time, who are the persons whom you must meet in a certain point and time.
WITNESS
A Normally, we did not have that, your Honor, except the checklist of all the things
that should be ready at a particular time prior to the race and the people to be
involved and we have a checklist to see to it that everything would be in order
before the start of the race.
COURT
Proceed.
ATTY. VINLUAN
Q Following the question of the Court Mr. Castro, did you meet with Lt. Depano of
the Police Department who were supposed to supervise the police officers
assigned to help during the race?
A I did not meet with him, sir.
Q You did not meet with him?
A I did not meet with him.
Q In fact, ever before or during the race you had no occasion to talk to Lt. Depano.
Is that correct?
A That is correct, sir.
ATTY. VINLUAN
Based on the question of the Court and your answer to the question of the Court,
are you trying to say that this planning before any race of all these groups who
have committed to help in the race, this is not done in any part of the world?
WITNESS
A In the latter years when your race became bigger and bigger, this is being done
now slowly.
ATTY. VINLUAN
Q But for this particular race you will admit that you failed to do it when you have to
coordinate and even have a dry run of the race you failed to do all of that in this
particular race, yes or no?
A Because there was. . .
COURT
It was already answered by him when I asked him. The Court has. . . Everybody
has a copy how of this time planner. Any activity or even meeting a girlfriend or
most people plan.
ATTY. F.M. LOMBOS
If your Honor please, before we proceed. . .
WITNESS
In the latter years, your Honor, when your race became bigger and bigger, this is
being done now slowly.
Q For this particular race you will admit that you failed to do it?
A Because there was no need, sir. 59

Probably sensing that he might have thereby contradicted himself, Castro,

Jr. clarified on redirect examination:
ATTY. LOMBOS
Q Now, you also responded to a question during the same hearing and this appears
on page 26 of the transcript that you did not hold any rehearsal or dry run for
 this particular marathon. Could you tell the Court why you did not hold any such
rehearsal or dry run?
A Because I believe there was no need for us to do that since we have been doing
this for many years and we have been the same people, same organization with
us for so many years conducting several races including some races in that area
consisting of longer distances and consisting of more runners, a lot more runners
in that areay (sic) so these people, they know exactly what to do and there was
no need for us to have a rehearsal. I believe this rehearsal would only be
applicable if I am new and these people are new then, we have to rehearse.
ATTY. LOMBOS
Q You also stated Mr. Castro that you did not have any action plan or brochure
which you would indicate, an assignment of each of the participating group as to
what to do during the race. Will you please explain what you meant when you
said you have no action plan or brochure?
WITNESS
A What I mean of action plan, I did not have any written action plan but I was fully
aware of what to do. I mean, those people did not just go there out of nowhere.
Obviously, there was an action on my part because I have to communicate with
them previously and to tell them exactly what the race is all about; where to
start; where it would end, and that is the reason why we have the ambulances,
we have the Boy Scouts, we have the CTA, we have the police, so it was very
obvious that there was a plan of action but not written because I know pretty well
exactly what to do. I was dealing with people who have been doing this for a long
period of time.60

 
While the level of trust Intergames had on its volunteers was admirable,
the coordination among the cooperating agencies was predicated on
circumstances unilaterally assumed by Intergames. It was obvious that
Intergames’ inaction had been impelled by its belief that it did not need any
action plan because it had been dealing with people who had been manning
similar races for a long period of time.
The evidence presented undoubtedly established that Intergames’ notion
of coordination only involved informing the cooperating agencies of the date
of the race, the starting and ending points of the route, and the places along
the route to man. Intergames did not conduct any general assembly with all
of them, being content with holding a few sporadic meetings with the leaders
of the coordinating agencies. It held no briefings of any kind on the actual
duties to be performed by each group of volunteers prior to the race. It did
not instruct the volunteers on how to minimize, if not avert, the risks of
danger in manning the race, despite such being precisely why their
assistance had been obtained in the first place.
Intergames had no right to assume that the volunteers had already been
aware of what exactly they would be doing during the race. It had the
responsibility and duty to give to them the proper instructions despite their
experience from the past races it had organized considering that the
particular race related to runners of a different level of experience, and
involved different weather and environmental conditions, and traffic
situations. It should have remembered that the personnel manning the race
were not its own employees paid to perform their tasks, but volunteers
whose nature of work was remotely associated with the safe conduct of road
races. Verily, that the volunteers showed up and assumed their proper
places or that they were sufficient in number was not really enough. It is
worthy to stress that proper coordination in the context of the event did not
consist in the mere presence of the volunteers, but included making sure
that they had been properly instructed on their duties and tasks in order to
ensure the safety of the young runners.
It is relevant to note that the participants of the 1st Pop Cola Junior
Marathon were mostly minors aged 14 to 18 years joining a race of that kind
for the first time. The combined factors of their youth, eagerness and
inexperience ought to have put a reasonably prudent organizer on higher
guard as to their safety and security needs during the race, especially
considering Intergames’ awareness of the risks already foreseen and of other
risks already known to it as of similar events in the past organizer. There was
no question at all that a higher degree of diligence was required given that
practically all of the participants were children or minors like Rommel; and
that the law imposes a duty of care towards children and minors even if
ordinarily there was no such duty under the same circumstances had the
persons involved been adults of sufficient discretion. 61 In that respect,
Intergames did not observe the degree of care necessary as the organizer,
rendering it liable for negligence. As the Court has emphasized in Corliss v.
The Manila Railroad Company,62 where the danger is great, a high degree of
care is necessary, and the failure to observe it is a want of ordinary care
under the circumstances.63
The circumstances of the persons, time and place required far more than
what Intergames undertook in staging the race. Due diligence would have
made a reasonably prudent organizer of the race participated in by young,
inexperienced or beginner runners to conduct the race in a route suitably
blocked off from vehicular traffic for the safety and security not only of the
participants but the motoring public as well. Since the marathon would be
run alongside moving vehicular traffic, at the very least, Intergames ought to
have seen to the constant and closer coordination among the personnel
manning the route to prevent the foreseen risks from befalling the
participants. But this it sadly failed to do.
 
II
The negligence of Intergames as the organizer
was the proximate cause of the death of Rommel
 
As earlier mentioned, the CA found that Rommel, while running the
marathon on Don Mariano Marcos Avenue and after passing the Philippine
Atomic Energy Commission Building, was bumped by a passenger jeepney
that was racing with a minibus and two other vehicles as if trying to crowd
each other out. As such, the death of Rommel was caused by the negligence
of the jeepney driver.
Intergames staunchly insists that it was not liable, maintaining that even
assuming arguendo that it was negligent, the negligence of the jeepney
driver was the proximate cause of the death of Rommel; hence, it should not
be held liable.
Did the negligence of Intergames give rise to its liability for the death of
Rommel notwithstanding the negligence of the jeepney driver?
In order for liability from negligence to arise, there must be not only proof
of damage and negligence, but also proof that the damage was the
consequence of the negligence. The Court has said in Vda. de Gregorio v. Go
Chong Bing:64
x x x Negligence as a source of obligation both under the civil law and in
American cases was carefully considered and it was held:
We agree with counsel for appellant that under the Civil Code, as under the
generally accepted doctrine in the United States, the plaintiff in an action such
as that under consideration, in order to establish his right to a recovery, must
establish by competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally or some
person for whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the
damage. (Taylor v. Manila Electric Railroad and Light Co., supra  at p. 15)
In accordance with the decision of the Supreme Court of Spain, in order that
a person may be held guilty for damage through negligence, it is necessary
that there be an act or omission on the part of the person who is to be charged
with the liability and that damage is produced by the said act or
omission.  (Emphasis supplied)
65

 
We hold that the negligence of Intergames was the proximate cause
despite the intervening negligence of the jeepney driver.
Proximate cause is “that which, in natural and continuous sequence,
unbroken by any new cause, produces an event, and without which the
event would not have occurred.” 66 In Vda. de Bataclan, et al. v. Medina,67 the
Court, borrowing from American Jurisprudence, has more extensively
defined proximate cause thusly:
“* * * ‘that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury and without which the result would
not have occurred.’ And more comprehensively, ‘the proximate legal cause is that
acting first and producing the injury, either immediately or by setting other events
in motion, all constituting a natural and continuous chain of events, each having a
close causal connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable result of the cause which
first acted, under such circumstances that the person responsible for the first event
should, as an ordinarily prudent and intelligent person, have reasonable ground to
expect at the moment of his act or default that an injury to some person might
probably result therefrom.’”68
  
To be considered the proximate cause of the injury, the negligence need
not be the event closest in time to the injury; a cause is still proximate,
although farther in time in relation to the injury, if the happening of it set
other foreseeable events into motion resulting ultimately in the
damage.69 According to an authority on civil law: 70 “A prior and remote cause
cannot be made the basis of an action, if such remote cause did nothing
more than furnish the condition or give rise to the occasion by which the
injury was made possible, if there intervened between such prior or remote
cause and the injury a distinct, successive, unrelated and efficient cause,
even though such injury would not have happened but for such condition or
occasion. If no damage exists in the condition except because of the
independent cause, such condition was not the proximate cause. And if an
independent negligent act or defective condition sets into operation the
circumstances which result in injury because of the prior defective condition,
such act or condition is the proximate cause.”
Bouvier adds:
In many cases important questions arise as to which, in the chain of acts tending
to the production of a given state of things, is to be considered the responsible
cause. It is not merely distance of place or of causation that renders a cause
remote. The cause nearest in the order of causation, without any efficient
concurring cause to produce the result, may be considered the direct cause. In the
course of decisions of cases in which it is necessary to determine which of
several causes is so far responsible for the happening of the act or injury
complained of, what is known as the doctrine of proximate cause is
constantly resorted to in order to ascertain whether the act, omission, or
negligence of the person whom it is sought to hold liable was in law and in
fact responsible for the result which is the foundation of the action. 71

x x x x
The question of proximate cause is said to be determined, not by the
existence or nonexistence of intervening events, but by their character
and the natural connection between the original act or omission and the
injurious consequences. When the intervening cause is set in operation by
the original negligence, such negligence is still the proximate cause; x x x
If the party guilty of the first act of negligence might have anticipated the
intervening cause, the connection is not broken; x x x. Any number of
causes and effects may intervene, and if they are such as might with
reasonable diligence have been foreseen, the last result is to be
considered as the proximate result. But whenever a new cause intervenes,
which is not a consequence of the first wrongful cause, which is not under
control of the wrongdoer, which could not have been foreseen by the
exercise of reasonable diligence, and except for which the final injurious
consequence could not have happened, then such injurious consequence
must be deemed too remote; x x x.  (bold underscoring supplied for emphasis)
72

 
An examination of the records in accordance with the foregoing concepts
supports the conclusions that the negligence of Intergames was the
proximate cause of the death of Rommel; and that the negligence of the
jeepney driver was not an efficient intervening cause.
First of all, Intergames’ negligence in not conducting the race in a road
blocked off from vehicular traffic, and in not properly coordinating the
volunteer personnel manning the marathon route effectively set the stage
for the injury complained of. The submission that Intergames had previously
conducted numerous safe races did not persuasively demonstrate that it had
exercised due diligence because, as the trial court pointedly observed,
“[t]hey were only lucky that no accident occurred during the previous
marathon races but still the danger was there.”73
Secondly, injury to the participants arising from an unfortunate vehicular
accident on the route was an event known to and foreseeable by Intergames,
which could then have been avoided if only Intergames had acted with due
diligence by undertaking the race on a blocked off road, and if only
Intergames had enforced and adopted more efficient supervision of the race
through its volunteers.
And, thirdly, the negligence of the jeepney driver, albeit an intervening
cause, was not efficient enough to break the chain of connection between
the negligence of Intergames and the injurious consequence suffered by
Rommel. An intervening cause, to be considered efficient, must be “one not
produced by a wrongful act or omission, but independent of it, and adequate
to bring the injurious results. Any cause intervening between the first
wrongful cause and the final injury which might reasonably have been
foreseen or anticipated by the original wrongdoer is not such an efficient
intervening cause as will relieve the original wrong of its character as the
proximate cause of the final injury.”74
In fine, it was the duty of Intergames to guard Rommel against the
foreseen risk, but it failed to do so.
 
III
The doctrine of assumption of risk
had no application to Rommel
 
Unlike the RTC, the CA ruled that the doctrine of assumption of risk
applied herein; hence, it declared Intergames and Cosmos not liable. The CA
rendered the following rationalization to buttress its ruling, to wit:
In this case, appellant Romulo Abrogar himself admitted that his son, Rommel
Abrogar, surveyed the route of the marathon and even attended a briefing before
the race. Consequently, he was aware that the marathon would pass through a
national road and that the said road would not be blocked off from traffic. And
considering that he was already eighteen years of age, had voluntarily participated
in the marathon, with his parents’ consent, and was well aware of the traffic
hazards along the route, he thereby assumed all the risks of the race. This is
precisely why permission from the participant’s parents, submission of a medical
certificate and a waiver of all rights and causes of action arising from the
participation in the marathon which the participant or his heirs may have against
appellant Intergames were required as conditions in joining the marathon.
 In the decision of the trial court, it stated that the risk mentioned in the waiver
signed by Rommel Abrogar only involved risks such as stumbling, suffering heat
stroke, heart attack and other similar risks. It did not consider vehicular accident as
one of the risks included in the said waiver.
This Court does not agree. With respect to voluntary participation in a sport, the
doctrine of assumption of risk applies to any facet of the activity inherent in it and
to any open and obvious condition of the place where it is carried on. We believe
that the waiver included vehicular accidents for the simple reason that it was a road
race run on public roads used by vehicles. Thus, it cannot be denied that vehicular
accidents are involved. It was not a track race which is held on an oval and
insulated from vehicular traffic. In a road race, there is always the risk of runners
being hit by motor vehicles while they train or compete. That risk is inherent in the
sport and known to runners. It is a risk they assume every time they voluntarily
engage in their sport.
Furthermore, where a person voluntarily participates in a lawful game or contest,
he assumes the ordinary risks of such game or contest so as to preclude recovery
from the promoter or operator of the game or contest for injury or death resulting
therefrom. Proprietors of amusements or of places where sports and games are
played are not insurers of safety of the public nor of their patrons.
In Mc Leod Store v. Vinson, 213 Ky 667, 281 SW 799 (1926), it was held that a
boy, seventeen years of age, of ordinary intelligence and physique, who entered a
race conducted by a department store, the purpose of which was to secure guinea
fowl which could be turned in for cash prizes, had assumed the ordinary risks
incident thereto and was barred from recovering against the department store for
injuries suffered when, within catching distance, he stopped to catch a guinea, and
was tripped or stumbled and fell to the pavement, six or eight others falling upon
him. The court further said: “In this (the race) he was a voluntary participant. x x x
The anticipated danger was as obvious to him as it was to appellant (the
department store). While not an adult, he was practically 17 years of age, of
ordinary intelligence, and perfectly able to determine the risks ordinarily incident to
such games. An ordinary boy of that age is practically as well advised as to the
hazards of baseball, basketball, football, foot races and other games of skill and
endurance as is an adult x x x.”
In the case at bar, the “1st Pop Cola Junior Marathon” held on June 15, 1980 was
a race the winner of which was to represent the country in the annual Spirit of
Pheidippides Marathon Classic in Greece, if he equals or breaks the 29-minute mark
for the 19-km. race. Thus, Rommel Abrogar having voluntarily participated in the
race, with his parents’ consent, assumed all the risks of the race.
75

 
The doctrine of assumption of risk means that one who voluntarily
exposes himself to an obvious, known and appreciated danger assumes the
risk of injury that may result therefrom. 76 It rests on the fact that the person
injured has consented to relieve the defendant of an obligation of conduct
toward him and to take his chance of injury from a known risk, and whether
the former has exercised proper caution or not is immaterial. 77 In other
words, it is based on voluntary consent, express or implied, to accept danger
of a known and appreciated risk; it may sometimes include acceptance of
risk arising from the defendant’s negligence, but one does not ordinarily
assume risk of any negligence which he does not know and appreciate. 78 As a
defense in negligence cases, therefore, the doctrine requires the
concurrence of three elements, namely: (1) the plaintiff must know that the
risk is present; (2) he must further understand its nature; and (3) his choice
to incur it must be free and voluntary. 79 According to Prosser:80 “Knowledge of
the risk is the watchword of assumption of risk.”
Contrary to the notion of the CA, the concurrence of the three elements
was not shown to exist. Rommel could not have assumed the risk of death
when he participated in the race because death was neither a known nor
normal risk incident to running a race. Although he had surveyed the route
prior to the race and should be presumed to know that he would be running
the race alongside moving vehicular traffic, such knowledge of the general
danger was not enough, for some authorities have required that the
knowledge must be of the specific risk that caused the harm to him. 81 In
theory, the standard to be applied is a subjective one, and should be geared
to the particular plaintiff and his situation, rather than that of the reasonable
person of ordinary prudence who appears in contributory negligence. 82 He
could not have appreciated the risk of being fatally struck by any moving
vehicle while running the race. Instead, he had every reason to believe that
the organizer had taken adequate measures to guard all participants against
any danger from the fact that he was participating in an organized marathon.
Stated differently, nobody in his right mind, including minors like him, would
have joined the marathon if he had known of or appreciated the risk of harm
or even death from vehicular accident while running in the organized running
event. Without question, a marathon route safe and free from foreseeable
risks was the reasonable expectation of every runner participating in an
organized running event.
Neither was the waiver by Rommel, then a minor, an effective form of
express or implied consent in the context of the doctrine of assumption of
risk. There is ample authority, cited in Prosser, 83 to the effect that a person
does not comprehend the risk involved in a known situation because of his
youth,84 or lack of information or experience, 85 and thus will not be taken to
consent to assume the risk.
Clearly, the doctrine of assumption of risk does not apply to bar recovery
by the petitioners.
IV
Cosmos is not liable for the negligence
of Intergames as the organizer
 
Nonetheless, the CA did not err in absolving Cosmos from liability.
The sponsorship of the marathon by Cosmos was limited to financing the
race. Cosmos did nothing beyond that, and did not involve itself at all in the
preparations for the actual conduct of the race. This verity was expressly
confirmed by Intergames, through Castro, Jr., who declared as follows:
COURT
Q Do you discuss all your preparation with Cosmos Bottling Company?
A As far as the Cosmos Bottling Company (sic) was a sponsor as to the
actual conduct of the race, it is my responsibility. The conduct of the
race is my responsibility. The sponsor has nothing to do as well as its
code of the race because they are not the ones running. I was the one
running. The responsibility of Cosmos was just to provide the sponsor’s
money.
COURT
Q They have no right to who (sic) suggest the location, the number of
runners, you decide these yourself without consulting them?
A Yes, your honor. 86

 
We uphold the finding by the CA that the role of Cosmos was to pursue its
corporate commitment to sports development of the youth as well as to
serve the need for advertising its business. In the absence of evidence
showing that Cosmos had a hand in the organization of the race, and took
part in the determination of the route for the race and the adoption of the
action plan, including the safety and security measures for the benefit of the
runners, we cannot but conclude that the requirement for the direct or
immediate causal connection between the financial sponsorship of Cosmos
and the death of Rommel simply did not exist. Indeed, Cosmos’ mere
sponsorship of the race was, legally speaking, too remote to be the efficient
and proximate cause of the injurious consequences.
 
V
Damages
 
Article 2202 of the Civil Code lists the damages that the plaintiffs in a suit
upon crimes and quasi-delicts can recover from the defendant, viz.:
Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all
damages which are the natural and probable consequences of the act or omission
complained of. It is not necessary that such damages have been foreseen or could
have reasonably been foreseen by the defendant.
 
Accordingly, Intergames was liable for all damages that were the natural
and probable consequences of its negligence. In its judgment, the RTC
explained the award of damages in favor of the petitioners, as follows:
As borne by the evidence on record, the plaintiffs incurred medical,
hospitalization and burial expenses for their son in this aggregate amount of
P28,061.65 (Exhibits “D,” ‘‘D-1” and “D-2”). In instituting this case, they have paid
their lawyer P5,000 as initial deposit, their arrangement being that they would pay
attorney’s fees to the extent of 10% of whatever amount would be awarded to them
in this case.
For the loss of a son, it is unquestionable that plaintiffs suffered untold grief
which should entitle them to recover moral damages, and this Court believes that if
only to assuage somehow their untold grief but not necessarily to compensate them
to the fullest, the nominal amount of P100,000.00 should be paid by the
defendants.
 For failure to adopt elementary and basic precautionary measure to insure the
safety of the participants so that sponsors and organizers of sports events should
exercise utmost diligence in preventing injury to the participants and the public as
well, exemplary damages should also be paid by the defendants and this Court
considers the amount of P50,000.00 as reasonable. 87

 
Although we will not disturb the foregoing findings and determinations, we
need to add to the justification for the grant of exemplary damages. Article
2231 of the Civil Code stipulates that exemplary damages are to be awarded
in cases of quasi-delict if the defendant acted with gross negligence. The
foregoing characterization by the RTC indicated that Intergames’ negligence
was gross. We agree with the characterization. Gross negligence, according
to Mendoza v. Spouses Gomez,88 is the absence of care or diligence as to
amount to a reckless disregard of the safety of persons or property; it
evinces a thoughtless disregard of consequences without exerting any effort
to avoid them. Indeed, the failure of Intergames to adopt the basic
precautionary measures for the safety of the minor participants like Rommel
was in reckless disregard of their safety. Conduct is reckless when it is an
extreme departure from ordinary care, in a situation in which a high degree
of danger is apparent; it must be more than any mere mistake resulting from
inexperience, excitement, or confusion, and more than mere
thoughtlessness or inadvertence, or simple inattention.89
The RTC did not recognize the right of the petitioners to recover the loss
of earning capacity of Rommel. It should have, for doing so would have
conformed to jurisprudence whereby the Court has unhesitatingly allowed
such recovery in respect of children, students and other nonworking or still
unemployed victims. The legal basis for doing so is Article 2206(1) of
the Civil Code, which stipulates that the defendant “shall be liable for the
loss of the earning capacity of the deceased, and the indemnity shall be paid
to the heirs of the latter; such indemnity shall in every case be assessed and
awarded by the court, unless the deceased on account of permanent
physical disability not caused by the defendant, had no earning capacity at
the time of his death.”
Indeed, damages for loss of earning capacity may be awarded to the heirs
of a deceased nonworking victim simply because earning capacity, not
necessarily actual earning, may be lost.
In Metro Manila Transit Corporation v. Court of Appeals,90 damages for loss
of earning capacity were granted to the heirs of a third year high school
student of the University of the Philippines Integrated School who had been
killed when she was hit and run over by the petitioner’s passenger bus as
she crossed Katipunan Avenue in Quezon City. The Court justified the grant
in this wise:
Compensation of this nature is awarded not for loss of earnings but for
loss of capacity to earn money. Evidence must be presented that the
victim, if not yet employed at the time of death, was reasonably certain to
complete training for a specific profession. In People v. Teehankee, no award
of compensation for loss of earning capacity was granted to the heirs of a college
freshman because there was no sufficient evidence on record to show that the
victim would eventually become a professional pilot. But compensation should
be allowed for loss of earning capacity resulting from the death of a minor
who has not yet commenced employment or training for a specific
profession if sufficient evidence is presented to establish the amount
thereof.  (bold underscoring supplied for emphasis)
91

 
In People v. Sanchez,92 damages for loss of earning capacity was also
allowed to the heirs of the victims of rape with homicide despite the lack of
sufficient evidence to establish what they would have earned had they not
been killed. The Court rationalized its judgment with the following
observations:
Both Sarmenta and Gomez were senior agriculture students at UPLB, the
country’s leading educational institution in agriculture. As reasonably assumed by
the trial court, both victims would have graduated in due course. Undeniably,
their untimely death deprived them of their future time and earning
capacity. For these deprivation, their heirs are entitled to
compensation. x x x x. However, considering that Sarmenta and Gomez
would have graduated in due time from a reputable university, it would
not be unreasonable to assume that in 1993 they would have earned more
than the minimum wage. All factors considered, the Court believes that it
is fair and reasonable to fix the monthly income that the two would have
earned in 1993 at P8,000.00 per month (or P96,000.00/year) and their
deductible living and other incidental expenses at P3,000.00 per month
(or P36,000.00/year).  (bold underscoring supplied for emphasis)
93

 
In Pereña v. Zarate,94 the Court fixed damages for loss of earning capacity
to be paid to the heirs of the 15-year-old high school student of Don Bosco
Technical Institute killed when a moving train hit the school van ferrying him
to school while it was traversing the railroad tracks. The RTC and the CA had
awarded damages for loss of earning capacity computed on the basis of the
minimum wage in effect at the time of his death. Upholding said findings, the
Court opined:
x x x the fact that Aaron was then without a history of earnings should not be
taken against his parents and in favor of the defendants whose negligence not only
cost Aaron his life and his right to work and earn money, but also deprived his
parents of their right to his presence and his services as well. x x x. Accordingly,
we emphatically hold in favor of the indemnification for Aaron’s loss of
earning capacity despite him having been unemployed, because
compensation of this nature is awarded not for loss of time or earnings
but for loss of the deceased’s power or ability to earn money.
 
The petitioners sufficiently showed that Rommel was, at the time of his
untimely but much lamented death, able-bodied, in good physical and
mental state, and a student in good standing. 95 It should be reasonable to
assume that Rommel would have finished his schooling and would turn out
to be a useful and productive person had he not died. Under the foregoing
jurisprudence, the petitioners should be compensated for losing Rommel’s
power or ability to earn. The basis for the computation of earning capacity is
not what he would have become or what he would have wanted to be if not
for his untimely death, but the minimum wage in effect at the time of his
death. The formula for this purpose is:
Net Earning Capacity = Life Expectancy x [Gross Annual Income Less Necessary
Living Expenses]
96

Life expectancy is equivalent to 2/3 multiplied by the difference of 80 and

the age of the deceased. Since Rommel was 18 years of age at the time of
his death, his life expectancy was 41 years. His projected gross annual
income, computed based on the minimum wage for workers in the
nonagricultural sector in effect at the time of his death, 97 then fixed at
P14.00/day, is P5,535.83. Allowing for necessary living expenses of 50% of
his projected gross annual income, his total net earning capacity is
P113,484.52.
Article 2211 of the Civil Code expressly provides that interest, as a part of
damages, may be awarded in crimes and quasi-delicts at the discretion of
the court. The rate of interest provided under Article 2209 of the Civil Code is
6% per annum in the absence of stipulation to the contrary. The legal
interest rate of 6% per annum is to be imposed upon the total amounts
herein awarded from the time of the judgment of the RTC on May 10, 1991
until finality of judgment.98 Moreover, pursuant to Article 2212 99 of the Civil
Code, the legal interest rate of 6% per annum is to be further imposed on the
interest earned up to the time this judgment of the Court becomes final and
executory until its full satisfaction.100
Article 2208 of the Civil Code expressly allows the recovery of attorney’s
fees and expenses of litigation when exemplary damages have been
awarded. Thus, we uphold the RTC’s allocation of attorney’s fees in favor of
the petitioners equivalent to 10% of the total amount to be recovered,
inclusive of the damages for loss of earning capacity and interests, which we
consider to be reasonable under the circumstances.
WHEREFORE, the Court PARTLY AFFIRMS the decision promulgated on
March 10, 2004 to the extent that it absolved COSMOS BOTTLING
COMPANY, INC. from liability; REVERSES and SETS ASIDE the decision as
to INTERGAMES, INC., and REINSTATES as to it the judgment rendered on
May 10, 1991 by the Regional Trial Court, Branch 83, in Quezon City subject
to the MODIFICATIONS that INTERGAMES, INC. is ORDERED TO PAY to
the petitioners, in addition to the awards thereby allowed: (a) the sum of
P113,484.52 as damages for the loss of Rommel Abrogar’s earning capacity;
(b) interest of 6% per annum on the actual damages, moral damages,
exemplary damages and loss of earning capacity reckoned from May 10,
1991 until full payment; (c) compounded interest of 6% per annum from the
finality of this decision until full payment; and (d) costs of suit.
 SO ORDERED.
Velasco, Jr. (Chairperson), Reyes, Jardeleza and Tijam, JJ., concur.
Judgment partly affirmed as it absolved Cosmos Bottling Company, Inc.
from liability, judgment reversed and set aside as to Intergames, Inc., and
the judgment of Regional Trial Court, Br. 83, Quezon City dated May 10,
1991 reinstated with modifications.
Notes.—In fixing the indemnity, the victim’s actual income at the time of
death and probable life expectancy are taken into account. For this purpose,
the Court adopts the formula used in People v. Malinao: Net earning capacity
= 2/3 x (80-age of the victim at the time of his death) x a reasonable portion
of the annual net income which would have been received by the heirs for
support. (Garcia vs. People, 597 SCRA 392 [2009])

In order that a party may be held liable for damages for any injury brought
about by the negligence of another, the claimant must prove that the
negligence was the immediate and proximate cause of the injury. (BJDC
Construction vs. Lanuzo, 719 SCRA 577 [2014])