G.R. No. L-7664 – 104 Phil. 397 – Civil Law – Torts and Damages – Due Diligence as a Defense – Last Clear Chance; when not applied
On July 5, 1952, Dominador Ong (14 years old) and his two brothers went to the swimming pool operated by Metropolitan Water District (MWD). After paying the entrance fee, the three proceeded to the small pool.
The swimming pools of MWD are provided with a ring buoy, toy roof, towing line, oxygen resuscitator and a first aid medicine kit. The bottom of the pools is painted with black colors so as to insure clear visibility. There is on display in a conspicuous place within the area certain rules and regulations governing the use of the pools. MWD employs six lifeguards who are all trained as they had taken a course for that purpose and were issued certificates of proficiency. These lifeguards work on schedule prepared by their chief and arranged in such a way as to have two guards at a time on duty to look after the safety of the bathers. There is a male nurse and a sanitary inspector with a clinic provided with oxygen resuscitator. And there are security guards who are available always in case of emergency.
Later, Dominador told his brothers that he’ll just be going to the locker room to drink a bottle of Coke. No one saw him returned. Later, the elder Ong noticed someone at the bottom of the big pool and notified the lifeguard in attendant (Manuel Abaño), who immediately dove into the water. The body was later identified as Dominador’s. He was attempted to be revived multiple times but of no avail.
The parents of Ong sued MWD averring that MWD was negligent in selecting its employees. During trial, the elder brother of Ong and one other testified that Abaño was reading a magazine and was chatting with a security guard when the incident happened and that he was called a third time before he responded. Plaintiff further alleged that even assuming that there was no negligence on the part of MWD, it is still liable under the doctrine of “Last Clear Chance” for having the last opportunity to save the Dominador, its employees failed to do so.
ISSUE: Whether or not MWD is liable for the death of Dominador Ong.
HELD: No. As established by the facts, MWD was not negligent in selecting its employees as all of them were duly certified. MWD was not negligent in managing the pools as there were proper safety measures and precautions/regulations that were placed all over the pools. Hence, due diligence is appreciated as a complete and proper defense in this case. Further, the testimony in court by the elder Ong and the other witness was belied by the statements they have given to the investigators when they said that the lifeguard immediately dove into the water when he was called about the boy at the bottom of the pool.
The doctrine of “Last Clear Chance” is of no application here. It was not established as to how Dominador was able to go to the big pool. He went to the locker and thereafter no one saw him returned not until his body was retrieved from the bottom of the big pool. The last clear chance doctrine can never apply where the party charged is required to act instantaneously (how can the lifeguard act instantaneously in dissuading Dominador from going to the big pool if he did not see him go there), and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered; at least in cases in which any previous negligence of the party charged cannot be said to have contributed to the injury.