'Force Of Nature' Or Human Error? Litigating The Act Of God Defense

The cause of the plaintiff's damages is typically the first and most critical question posed to a jury in a product liability trial. If a jury determines that a substantial factor in the cause of the plaintiff's damages was a natural event, such as lightning, a tornado or some other weather-related event, the defendant is not held liable. The act of God defense has been around since the 1800s and, if successfully proven at trial, can serve as a complete defense to a product liability claim. For a variety of reasons, however, the act of God defense has been streamlined by most courts and its viability is being tested in product liability litigation around the nation.

The case that first recognized this defense was Gleeson v. Va. Mid. Ry., 140 U.S. 435, 11 S. Ct. 859 (1891). In Gleeson, the United States Supreme Court held that parties could not be liable for injuries and sudden deaths caused by extraordinary floods, storms of unusual violence, sudden tempests, severe frosts, great droughts, lightning and earthquakes.

The United States Congress defined an act of God as "an unanticipated, grave natural disaster or other natural phenomenon of an exceptional, inevitable and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight." See the Oil Pollution Act, 33 U.S.C. § 2701(1) (2006); and the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601(1) (2006).

Nonetheless, the mere fact that a natural event, such as lightning, strong winds or a flood, may have occurred and brought about the plaintiff's injuries or damages does not insulate the defendant from potential liability. The following are important factors that the defendant should be prepared to prove when asserting an act of God defense: (1) was there a duty owed to the plaintiff by the defendant, (2) were the event and attendant harm foreseeable, (3) how often, if ever, has this type of natural event occurred previously, and (4) was the defendant negligent? If it is found that the defendant was negligent and the...