The recent flooding recently caused by the heavy rainfall brought by Typhoons Ondoy and Pepeng has caused tremendous damage to life and property. Also recently, there are threats to sue the dam operators who were allegedly negligent in releasing water too late and without sufficient warning.

This brings to mind the old case of National Power Corporation vs. Court of Appeals (G.R. No. L-47379, 16 May 1988). Typhoon Welming hit Central Luzon in 1967, passing through the Angat Hydro-Electric Project and Dam of the National Power Corporation (NPC or Napocor) in Norzagaray, Bulacan. The heavy downpour caused the water in the Angat Dam reservoir to rise perilously to a danger height of 212 meters above sea level. Napocor caused the opening of the sppillway gates to to prevent an overflow of water from the dam.

The Engineering Construction, Inc. (ECI), which had been doing construction work also in Norzagaray, suffered losses to its equipment and properties when the extraordinary large volume of water rushed out of the spillway gates and hit ECI’s installations and construction works.

Napocor was found to be negligent because it opened the spillway gates of the Angat Dam only at the height of typhoon “Welming”. NPC knew of the coming typhoon at least four days before it actually struck. NPC also knew it was safer to have opened the spillway gates gradually and earlier.

A typhoon is an act of God. However, according to the Supreme Court, even though the typhoon was an act of God or what we may call force majeure, NPC cannot escape liability because its negligence was the proximate cause of the loss and damage.

If upon the happening of a fortuitous event or an act of God, there concurs a corresponding fraud, negligence, delay or violation or contravention in any manner of the tenor of the obligation as provided for in Article 1170 of the Civil Code, which results in loss or damage, the obligor cannot escape liability.

The principle embodied in the act of God doctrine strictly requires that the act must be one occasioned exclusively by the violence of nature and human agencies are to be excluded from creating or entering into the cause of the mischief. When the effect, the cause of which is to be considered, is found to be in part the result of the participation of man, whether it be from active intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it was, and removed from the rules applicable to the acts of God.

Thus, it has been held that when the negligence of a person concurs with an act of God in producing a loss, such person is not exempt from liability by showing that the immediate cause of the damage was the act of God. To be exempt from liability for loss because of an act of God, he must be free from any previous negligence or misconduct by which the loss or damage may have been occasioned.