BERNARDINO JIMENEZ, PETITIONER, VS. CITY OF MANILA AND INTERMEDIATE APPELLATE COURT, RESPONDENTS.

This is a petition for review on certiorari of: (1) the decision* of the Intermediate Appellate Court
in AC-G.R. No. 013887-CV Bernardino
Jimenez v. Asiatic Integrated Corporation and City of Manila, reversing
the decision**
of the Court of First Instance of Manila, Branch XXII in Civil Case No. 96390 between the same parties, but only insofar
as holding Asiatic Integrated Corporation solely liable for damages and
attorney’s fees instead of making the City of Manila jointly and solidarily
liable with it as prayed for by the petitioner and (2) the resolution of the
same Appellate Court denying his Partial Motion for Recon­sideration (Rollo, p.
2).

The dispositive portion
of the Intermediate Appellate Court’s decision is as follows:

“WHEREFORE, the decision appealed from is hereby
REVERSED. A new one is hereby entered
ordering the defendant Asiatic Integrated Corporation to pay the plaintiff
P221.90 actual medical ex­penses,
P900.00 for the amount paid for the operation and management of a school bus,
P20,000.00 as moral damages due to pains, sufferings and sleepless nights and
P10,000,00 as attorney’s fees.

SO ORDERED.” (p. 20, Rollo)

The findings of respondent Appellate Court are as follows:

The evidence of the plaintiff (petitioner herein) shows that in
the morning of August 15, 1974 he, together with his neighbors, went to Sta.
Ana public market to buy “bagoong” at the time when the public market
was flooded with ankle deep rainwater. After purchasing the “bagoong” he turned around to return home
but he stepped on an uncovered open­ing which could not be seen because of the
dirty rainwater, causing a dirty and rusty four-inch nail, stuck inside the
uncovered opening, to pierce the left leg of plaintiff-peti­tioner penetrating
to a depth of about one and a half inches. After administering first aid treatment at a nearby drugstore, his companions helped him hobble
home. He felt ill and developed fever
and he had to be carried to Dr. Juanita Mascardo. Despite the medicine administered to him by the latter, his left
leg swelled with great pain. He was
then rushed to the Veterans Memorial Hospital where he had to be confined for
twenty (20) days due to high fever and severe pain.

Upon his discharge from the hospital, he had to walk around with
crutches for fifteen (15) days. His
injury pre­vented him from attending to the school buses he is operating. As a result, he had to engage the services of one Bienvenido Valdez to supervise
his business for an aggregate compensation of nine hundred pesos (P900.00). (Decision, AC-G.R. CV No. 01387, Rollo, pp. 13-20).

Petitioner sued for damages the City of Manila and the Asiatic Integrated Corporation
under whose administra­tion the Sta. Ana Public Market had been placed by
virtue of a Management and Operating
Contract (Rollo, p. 47).

The lower court decided
in favor of respondents, the dispositive portion of the decision reading:

“WHEREFORE, judgment is hereby rendered in favor of the
defendants and against the plaintiff dismissing the complaint with costs
against the plaintiff. For lack of
sufficient evidence, the counterclaims of the defend­ants are likewise
dismissed.” (Decision, Civil Case No. 96390, Rollo, p. 42).

As above stated, on appeal, the Intermediate Appel­late Court
held the Asiatic Integrated Corporation liable for damages but absolved
respondent City of Manila.

Hence this petition.

The lone assignment of error raised in this peti­tion is on
whether or not the Intermediate Appellate Court erred in not ruling that
respondent City of Manila should be jointly and severally liable with Asiatic
Integrated Corporation for the injuries
petitioner suffered.

In compliance with the resolution of July 1, 1985 of the First
Division of this Court (Rollo, p.
29) respondent City of Manila filed its comment on August 13, 1985 (Rollo, p. 34) while petitioner filed
its Reply on August 21, 1985. (Rollo, p. 51).

Thereafter, the Court in the resolution of Septem­ber 11, 1985
(Rollo, p. 62) gave due course to the petition and required both parties to
submit simultaneous memoranda.

Petitioner filed his memorandum on October 1, 1985 (Rollo, p. 65)
while respondent filed its memorandum on October 24, 1985 (Rollo, p. 82).

In the resolution of October 13, 1986, this case was transferred
to the Second Division of this Court, the same having been assigned to a member
of said Division (Rollo, p. 92).

The petition is impressed with merit.

As correctly found by the Intermediate Appellate Court, there is
no doubt that the plaintiff suffered injuries when he fell into a drainage
opening without any cover in the Sta. Ana Public Market. Defendants do not deny that plaintiff was in
fact injured although the Asiatic Integrated
Corporation tries to minimize the extent of the injuries, claiming that it was only a small puncture
and that as a war veteran, plaintiff’s hospitalization at the War Veteran’s
Hospital was free. (Decision, AC-G.R.
CV No. 01387, Rollo, p. 6).

Respondent City of Manila maintains that it cannot be held liable
for the injuries sustained by the petitioner because under the Management and
Operating Contract, Asiatic Integrated Corporation assumed all responsibility
for damages which may be suffered by third persons for any cause attri­butable
to it.

It has also been argued that the City of Manila cannot be held
liable under Article I, Section 4 of Republic Act No. 409 as amended (Revised
Charter of Manila) which provides:

“The City shall not be liable or held for damages or injuries
to persons or property arising from the failure of the Mayor, the Municipal
Board, or any other City Officer, to enforce
the provisions of this chapter, or any other law or ordinance, or from
negligence of said Mayor, Municipal Board, or any other officers while
enforcing or attempting to enforce said provisions.”

This issue has been laid to rest in the case of City of Manila v.
Teotico (22 SCRA 269-272 /1968/) where the Supreme Court squarely ruled that
Republic Act No. 409 establishes a general rule regulating the liability of the
City of Manila for “damages or injury to persons or property arising from
the failure of city officers” to enforce the provisions of said Act,
“or any other law or ordinance or from negligence” of the City
“Mayor, Municipal Board, or other officers while enforcing or attempting
to enforce said provisions.”

Upon the other hand, Article 2189 of the Civil Code of the
Philippines which provides that:

“Provinces, cities and munici­palities shall be liable for
damages for the death of, or injuries suf­fered by any person by reason of de­fective
conditions of roads, streets, bridges, public buildings and other public works
under their control or supervision.”

constitutes a particular prescription
making “provinces, cities and municipalities x x x liable for damages for
the death of, or injury suffered by any person by reason” — specifically
— “of the defective condition of roads, streets, bridges, public
buildings, and other public works under their control or supervision.” In
other words, Art. 1, sec. 4, R.A. No. 409 refers to liability arising from
negligence, in general, regardless of the object, thereof, while Article 2189
of the Civil Code governs liability due to
“defective streets, public buildings and other public works” in particular
and is therefore decisive on this specific case.

In the same suit, the Supreme Court clarified further that under
Article 2189 of the Civil Code, it is not neces­sary for the liability therein
established to attach, that the defective public works belong to the province,
city or municipality from which responsibility is exacted. What said
article requires is that the province, city or municipality has either
“control or supervision” over the public build­ing in question.

In the case at bar, there is no question that the Sta. Ana Public
Market, despite the Management and Operating Contract between respondent City
and Asiatic Integrated Corporation remained under the control of the former.

For one thing, said contract is explicit in this regard, when it
provides:

“-II-

That immediately after the execu­tion of this contract, the SECOND
PARTY shall start the painting, cleaning, sani­tizing and repair of the public
markets and talipapas and within ninety (90) days thereof, the SECOND PARTY
shall submit a program of improvement, development, re­habilitation and
reconstruction of the city public markets and talipapas sub­ject to prior
approval of the FIRST PARTY. (Rollo, p.
44)

xxx    xxx       xxx

“-VI?

That all present personnel of the City public markets and talipapas
shall be retained by the SECOND
PARTY as long as their services remain satisfactory and they shall be extended
the same rights and privileges as heretofore enjoyed by them. Provided,
however, that the SECOND PARTY shall have the right, subject to
prior approval of the FIRST PARTY to discharge any of the present employees for
cause. (Rollo, p. 45).

“-VII-

That the SECOND PARTY may
from time to time be required by the FIRST PARTY, or his duly authorized
represent­ative or representatives, to report on the activities and operation
of the City pub­lic markets and talipapas and the facilities and conveniences installed therein,
particularly as to their cost of construction, operation and maintenance in
connection with the stipulations contained in this Contract.” (Ibid.)

The fact of supervision and control of the City over subject
public market was admitted by Mayor Ramon Bagat­sing in his letter to Secretary of Finance Cesar Virata which reads:

“These cases arose from the contro­versy over the Management
and Operating Contract entered into on December 28, 1972 by and between the City of Manila and the
Asiatic Integrated Corporation, whereby in consideration of a fixed service
fee, the City hired the services of the said corporation to undertake the
physical management, maintenance, rehabilitation and development of the City’s
public mar­kets and ‘Talipapas’ subject to the con­trol and supervision of the
City.

xxx    xxx       xxx

“It is believed that there is nothing incongruous in the
exercise of these powers vis-a-vis the existence of the contract, inasmuch as the
City retains the power of supervision and control over its public markets and
talipapas under the terms of the contract.” (Exhibit 7-A.)
(Underscoring supplied.) (Rollo, p. 75).

In fact, the City of Manila employed a market master for the Sta.
Ana Public Market whose primary duty is to take direct supervision and control
of that particular market, more specifically, to check the safety of the place
for the public.

Thus the Asst. Chief of the Market Division and Deputy Market
Administrator of the City of Manila testified as follows:

“Court             : This market master is an
employee of the City of Manila?

Mr. Ymson     : Yes, Your Honor.

Q                    : What are his functions?

A                     : Direct supervision and
control over the market area assigned to
him”. (T.s,n., pp. 41-42, Hearing
of May 20, 1977.)

xxx  xxx

“Court             : As far as you know there is or is there any
specific employee assigned with the task of see­ing to it that the Sta. Ana Market is safe for the public?

“Mr. Ymson    : Actually, as I stated, Your Honor, that the
Sta. Ana has its own market master. The
primary duty of market master is to make the direct supervision and control of that particular market, the check
or verifying whether the place is safe for public safety is vested in the
market master.” (T.s.n., pp. 24-25, Hearing of July 27, 1977.) (Underscoring
supplied.) (Rollo, p. 76).

Finally, Section 30(g) of the Local Tax Code as amended provides:

“The treasurer
shall exercise direct and immediate supervision, administration and control
over public markets and the personnel thereof, including those whose duties
concern the maintenance and up-keep of the market and ordinances and other
pertinent rules and regulations.” (Underscoring supplied.) (Rollo, p. 76)

The contention of respondent City of Manila that petitioner
should not have ventured to go to Sta. Ana Public Market during a stormy
weather is indeed untenable. As
observed by respondent Court of Appeals, it is an error for the trial court to
attribute the negligence to herein petitioner. More specifically stated, the findings of appellate court are as
follows:

“x x x The trial court even chastised the plaintiff for going to market on a rainy
day just to buy bagoong. A cus­tomer in
a store has the right to assume that the owner will comply with his duty to
keep the premises safe for customers. If
he ventures to the store on the basis of such assumption and is injured because
the owner did not com­ply with his duty, no negligence can be imputed to
the customer.” (Decision, AC G.R. CV
No. 01387, Rollo, p. 19).

As a defense
against liability on the basis
of a quasi-delict, one must have exercised the diligence of a good father of a
family. (Art. 1173 of the Civil Code).

There is no argument that it is the duty of the City of Manila to
exercise reasonable care to keep the public market reasonably safe for people
frequenting the place for their marketing needs.

While it may be conceded that the fulfillment of such duties is
extremely difficult during storms and floods,
it must however, be admitted that ordinary precautions could have been
taken during good weather to minimize the dangers to life and limb under those difficult circumstances.

For instance, the drainage
hole could have been placed under the stalls instead of on the passage
ways. Even more important is the fact, that the City should have seen
to that the openings were covered. Sadly, the evidence indicates that long
before petitioner fell into the opening, it was already uncovered, and five (5)
months after the incident happened, the opening was still uncovered. (Rollo, pp. 57; 69). Moreover, while there are findings that
during floods the vendors remove the iron grills to hasten the flow of water
(Decision, AC-G.R. CV No. 01387, Rollo, p. 17), there is no
showing that such practice has ever been prohibited much less penalized by the
City of Manila. Neither was it shown
that any sign had been placed thereabouts to warn passers-by of the impending
danger.

To recapitulate, it appears
evident that the City of Manila is likewise liable for damages under
Article 2189 of the Civil Code, respondent City having retained control and
supervision over the Sta. Ana Public Market and as tort­-feasor under Article
2176 of the Civil Code on quasi­-delicts.

Petitioner had the right to assume that there were no openings in
the middle of the passageways and if any, that they were adequately
covered. Had the opening been covered,
petitioner could not have fallen into it. Thus the negligence of the City of Manila is the proximate cause of the
injury suffered, the City is therefore liable for the injury suf­fered by the
petitioner.

Respondent City of Manila and Asiatic Integrated Corporation
being joint tort-feasors, are solidarily liable under Article 2194 of the Civil
Code.

PREMISES CONSIDERED, the decision of the Court of Appeals
is hereby MODIFIED, making the City of Manila and the Asiatic Integrated Corporation solidarily liable to pay the
plaintiffs P221.90 actual medical expenses, P900.00 for the amount paid for the
operation and management of the school bus, P20,000.00 as moral damages due to pain, sufferings and sleepless nights
and P10,000.00 as attorney’s fees.

SO ORDERED.

Fernan, (Chairman), Gutierrez, Jr., Padilla, Bidin, and Cortes, JJ.,
concur.

*
Penned by Justice Jorge R. Coquia and concurred in by Justices Mariano A. Zosa,
Floreliana Castro-Bartolome, and Bienvenido C. Ejercito.

**
Written by Judge Amador T. Vallejos.