The Act of God Affirmative Defense in U.S. Federal and State Law

The Act of God Affirmative Defense in U.S. Federal and State Law: A Comprehensive Analysis

Introduction

The "Act of God" doctrine is a long-standing affirmative defense in American jurisprudence, rooted in common law principles. It serves to absolve a defendant from liability where damages are caused by natural events of an extraordinary and unforeseeable nature, which could not have been prevented by the exercise of reasonable human foresight, care, or skill. This article provides a scholarly analysis of the Act of God affirmative defense as it is applied in U.S. Federal and State law, drawing upon key case law to elucidate its constituent elements, the burden of proof, its interplay with negligence, and its application across various factual scenarios. The central inquiry revolves around whether an event is so overwhelming and unanticipated that it supersedes any potential human culpability.

Defining the "Act of God" Affirmative Defense

The Act of God defense, sometimes referred to by the civilian term "force majeure" or "vis major" (superior force),[1] operates to excuse a defendant from liability when an injury or loss is attributable directly and exclusively to a natural catastrophe that human prudence could not perceive or prevent. The Supreme Court of Louisiana in HANKS v. ENTERGY CORP. (2006) and Raymond Morgan ALLEN v. Louis SIMON (2004) articulated this, defining an Act of God as "a providential occurrence or extraordinary manifestation of the forces of nature, which could not have been foreseen and the effect thereof avoided by the exercise of reasonable prudence, diligence and care, or by the use of those means, which the situation renders reasonable to employ."[2], [3] This definition underscores two critical aspects: the unforeseeable and extraordinary nature of the event, and the inability of human intervention, exercising reasonable care, to avert its consequences.

Similarly, Pennsylvania law, as cited in PHOENIX LITHOGRAPHING CORP. v. BIND RITE SERVICES, INC. (2014), defines an Act of God as “an unusual, extraordinary, sudden and unexpected manifestation of the forces of nature which cannot be prevented by human care, skill or foresight.”[4] The defense posits that because no human agency could resist the event, the resulting misfortune is an inevitable accident, the loss from which must be borne by the one upon whom it falls, unless contractual provisions dictate otherwise.[3], [4]

Elements of the Act of God Defense

For the Act of God defense to succeed, several elements must typically be established by the defendant, who bears the burden of proof.[5] These elements, while articulated with slight variations across jurisdictions, generally include: (1) the occurrence of a natural event of an extraordinary and unforeseeable nature; (2) the event being the sole proximate cause of the injury or damage; and (3) the absence of any contributing negligence on the part of the defendant, or a showing that reasonable prudence and diligence could not have avoided the harm.

1. Extraordinary and Unforeseeable Nature of the Event

A cornerstone of the defense is that the natural event must be more than merely a common or anticipated occurrence. As the Eighth Circuit noted in BROWN v. SANDALS RESORTS INTERN (2002), "The ordinary force of nature such as winds which are usual at the time and place are conditions which reasonably could have been anticipated and will not relieve from liability the person guilty of the original negligent act."[5] The event must be "so extraordinary that the history of climatic variations in the locality affords no reasonable warning of their coming."[5], [6]

Courts often look to the history of the locality and existing conditions. For instance, in determining whether a flood is extraordinary, Pennsylvania courts consider "the character of the particular stream, the adjacent territory and the history of previous floods."[4] In VERDUGO v. SEVEN THIRTY ONE LTD (2010), a New York appellate court rejected an Act of God defense based on 30 mph winds, finding them not to be an "unusual, extraordinary and unprecedented event."[7] The court also dismissed claims of higher wind gusts due to lack of supporting data.[7] This highlights the evidentiary burden on the defendant to prove the event's exceptional character.

2. Sole Proximate Cause

The Act of God must be the sole and exclusive cause of the plaintiff's damages. If the defendant's negligence concurs with the Act of God to produce the injury, the defense typically fails. The Supreme Court of Iowa in KEYSTONE ELEC. MFG. v. CITY OF DES MOINES (1998) stated that to establish the defense, a defendant must show "(1) that the act of God in fact occurred; and (2) that the act of God was the sole proximate cause of plaintiffs' injuries."[8] If "neglect in the employment of a human agency is combined with an act of God, liability for damage results from such neglect."[8]

This principle is echoed in numerous state court decisions. Louisiana law holds that "when a force majeure or act of God combines or concurs with the conduct of a defendant to produce an injury, the defendant may be held liable for any damages that would not have occurred, but for its own conduct or omission."[2] Similarly, the Eighth Circuit, applying general common law principles, stated, "[W]here an act of God and the negligence of a defendant concur and proximately cause damage, the defendant is liable as though his negligence alone had caused the damage."[5] The Alabama Supreme Court in LAW v. GULF STATES STEEL CO. (1934) clarified that if injury would have resulted regardless of the defendant's actions, liability is limited to any *increased* injury proximately resulting from the defendant's conduct.[6]

The Eleventh Circuit in FISCHER v. S/Y NERAIDA (2007) discussed the defense in the context of maritime law, noting that the Act of God defense "denies that the defendant's acts or omissions...caused the accident."[9] Such accidents are deemed "inevitable" because they "would have happened anyway regardless of what the defendant did," requiring a showing that "all reasonable measures would have been futile."[9]

3. Reasonable Prudence and Diligence of the Defendant

Even if an event is extraordinary, the defendant may still be liable if they failed to exercise reasonable care, prudence, or diligence to anticipate or mitigate the effects of such an event, to the extent possible. The test, as articulated in PHOENIX LITHOGRAPHING CORP., quoting Bowman v. Columbia Tel. Co., is: "Did the defendant do all that a reasonable person could have been expected to do to avoid the happening which is the cause of the plaintiff's injuries? If he did, he is not liable in damages. If he did not, he is liable."[4] This involves an assessment of whether the effects of the natural event "could not have been foreseen and the effect thereof avoided by the exercise of reasonable prudence, diligence and care."[2], [3]

The case of MORRIS MENCHER v. ELLIS E. WATERMAN ET AL. (1926) from Maine illustrates the duty to maintain property against foreseeable weather conditions, including extremes typical for the climate, implying that failure to do so could negate an Act of God defense if the weather, while severe, was not beyond reasonable expectation for which precautions should have been taken.[10]

Burden of Proof and Application in Different Contexts

The defendant asserting the Act of God defense bears the burden of proving each of its elements by a preponderance of the evidence.[2], [5] Failure to establish any element, particularly that the event was unforeseeable or that it was the sole proximate cause, will typically result in the defense being rejected.

Interaction with Defendant's Negligence

As discussed, a critical aspect is the interaction between the natural event and any negligence on the part of the defendant. If a defendant's negligence creates a condition that allows an otherwise resistible natural force to cause harm, or if the defendant's negligence exacerbates the harm caused by an Act of God, liability may attach. The court in HANKS v. ENTERGY CORP. found the trial court's reasoning "indicative of applying a preponderance of the evidence burden of proof to the defendant's affirmative defense" and upheld the finding that Entergy failed to establish its force majeure defense concerning a lightning strike, implying that the defendant's equipment or preparedness might have been a concurrent cause.[2]

Specific Applications

The Act of God defense arises in various contexts, most commonly involving extreme weather phenomena such as floods, hurricanes, tornadoes, lightning strikes, and blizzards.

  • Weather Events: In DICKMAN v. TRUCK TRANSPORT, INC (1974), an "unprecedented wind storm, coupled with dust, of unusual violence" was pleaded as an Act of God.[11] The viability of such a defense hinges on the truly unforeseeable and overwhelming nature of the storm.[5], [7]
  • Sudden Illness: Georgia law recognizes that a "sudden and unforeseeable loss of consciousness by a driver is a complete defense to a claim that the driver negligently lost control of the automobile."[12], [13] This is treated as an Act of God under OCGA § 1-3-3(3), which includes "sudden death, or illness."[12] The driver must show the loss of consciousness was unforeseeable and produced the accident without contributing negligence.[12], [13]

Analysis of Key Jurisprudence and Jurisdictional Nuances

While the core principles of the Act of God defense are relatively consistent, its application can vary subtly across jurisdictions. Federal courts, when applying state law in diversity cases or interpreting federal common law (e.g., in admiralty), generally adhere to these established tenets. The FISCHER case (11th Cir.) provides a federal appellate perspective, emphasizing the "inevitable accident" aspect where the harm would occur irrespective of any (non)negligent act by the defendant.[9]

State courts, as seen in the provided materials, offer specific interpretations:

  • Louisiana: Explicitly equates Act of God with "force majeure" and emphasizes that the force must be irresistible and its effects unavoidable through reasonable care.[2], [3]
  • Iowa: Articulates a clear two-part test: occurrence of the Act of God and its status as the sole proximate cause.[8], [11] The case of KEYSTONE ELEC. MFG. v. CITY OF DES MOINES also involved questions of governmental immunity in emergency responses, which can intersect with Act of God claims when public entities are defendants.[14]
  • Georgia: Has specific statutory backing (OCGA § 1-3-3(3)) and case law applying the defense to sudden, unforeseeable illness causing loss of consciousness while driving.[12], [13]
  • Pennsylvania: Stresses the need to consider local history and conditions in assessing foreseeability, particularly for events like floods.[4]
  • New York: Sets a high bar for an event to be deemed "unusual, extraordinary and unprecedented."[7]

The case of UNITED STATES v. KANSAS CITY INS. CO. (1950), while primarily a Fifth Amendment takings case concerning federal maintenance of navigable waters, indirectly touches upon the limits of responsibility when dealing with natural water levels.[15] The concept of an "ordinary high-water mark" itself implies a degree of foreseeability regarding water behavior. While not an Act of God defense case, it illustrates the broader legal principle that entities are expected to account for known natural conditions, and liability often turns on whether actions (or inactions) were reasonable in light of those conditions and their potential impact.[15] This aligns with the foreseeability element crucial to the Act of God defense.

Limitations and Procedural Considerations

The Act of God defense is not a panacea for defendants. Its successful assertion is challenging due to the stringent requirements of unforeseeability and sole causation. Courts are generally reluctant to allow the defense for events that, while severe, are not entirely outside the realm of historical experience for a particular locality.[5]

Procedurally, the defense must be affirmatively pleaded.[16] Defendants may also choose to withdraw the defense, as seen in DANIELSON v. WAL-MART STORES, INC. (2006) and discussed in SHAFER v. STICHNOTH (2007), which noted that "a defendant is not compelled to pursue affirmative defenses."[17], [18]

Furthermore, the conduct of the defendant during litigation can impact the court's view, although not directly related to the substantive elements of the defense. For instance, BROWN v. SANDALS RESORTS INTERN highlighted instances of discovery abuse by the defendant's counsel, which, while separate from the merits of the Act of God claim, can influence the overall proceedings and sanctions.[5]

Contractual provisions, often termed "force majeure" or "vis major" clauses, can also modify or explicitly define what constitutes an Act of God for the purposes of that agreement, potentially altering common law applications.[4] Where no such contractual agreement is present, common law principles govern.[4]

Conclusion

The Act of God affirmative defense remains a significant, albeit narrowly applied, doctrine in U.S. Federal and State law. It reflects the legal system's recognition that certain natural events are so powerful and unpredictable that they absolve individuals and entities from liability for resulting damages, provided the event was genuinely unforeseeable and its effects could not have been prevented or mitigated by reasonable human care and diligence. The critical elements of extraordinariness, unforeseeability, and sole proximate causation, coupled with the defendant's burden of proof, ensure that the defense is reserved for truly exceptional circumstances where human agency is genuinely superseded by the overwhelming forces of nature. As demonstrated by the diverse case law, courts meticulously scrutinize the facts, the historical context of the event, and the defendant's conduct in determining the applicability of this ancient yet enduring legal principle.

References

  1. [1] PHOENIX LITHOGRAPHING CORP., Plaintiff, v. BIND RITE SERVICES, INC., Defendant. (E.D. Pa., 2014).
  2. [2] HANKS v. ENTERGY CORP., 2006-477 (La. 12/18/06) (Supreme Court of Louisiana., 2006).
  3. [3] Raymond Morgan ALLEN v. Louis SIMON and Allstate Ins. Co. (La. Ct. App., 2004).
  4. [4] PHOENIX LITHOGRAPHING CORP., Plaintiff, v. BIND RITE SERVICES, INC., Defendant. (E.D. Pa., 2014) (citing Carlson v. A & P Corrugated Box Corporation, 364 Pa. 216, 72 A.2d 290, 292 (1950) and Bowman v. Columbia Tel. Co., 406 Pa. 455, 179 A.2d 197, 202 (1962)). Note: Reference [4] appears twice in the provided materials with slight variations in the quoted text start/end but covering the same core definitions and principles. The citation here covers both instances.
  5. [5] BROWN v. SANDALS RESORTS INTERN (United States Court of Appeals, Eighth Circuit., 2002).
  6. [6] LAW v. GULF STATES STEEL CO. (Ala., 1934).
  7. [7] VERDUGO v. SEVEN THIRTY ONE LTD (70 A.D.3d 600, Appellate Division of the Supreme Court of New York, First Department., 2010) and VERDUGO v. SEVEN THIRTY ONE LTD (Appellate Division of the Supreme Court of New York, First Department., 2010). Note: Reference [7] appears twice in the provided materials, one being a more detailed excerpt.
  8. [8] KEYSTONE ELEC. MFG. v. CITY OF DES MOINES (Supreme Court of Iowa., 1998) (citing Dickman v. Truck Transp., Inc., 224 N.W.2d 459, 465 (Iowa 1974)).
  9. [9] FISCHER v. S/Y NERAIDA (United States Court of Appeals, Eleventh Circuit., 2007).
  10. [10] MORRIS MENCHER v. ELLIS E. WATERMAN ET AL. (Me., 1926).
  11. [11] DICKMAN v. TRUCK TRANSPORT, INC (224 N.W.2d 459, Supreme Court of Iowa., 1974).
  12. [12] HALLIGAN v. BROUN (285 Ga. App. 226, Court of Appeals of Georgia., 2007).
  13. [13] Gilbert v. Freeland (874 S.E.2d 403, Court of Appeals of Georgia, Third Division, 2022).
  14. [14] KEYSTONE ELEC. MFG. v. CITY OF DES MOINES (586 N.W.2d 340, Supreme Court of Iowa., 1998).
  15. [15] UNITED STATES v. KANSAS CITY INS. CO (339 U.S. 799, U.S. Supreme Court, 1950).
  16. [16] VERDUGO v. SEVEN THIRTY ONE LTD (70 A.D.3d 600, Appellate Division of the Supreme Court of New York, First Department., 2010) (referring to dismissal of "act of God" affirmative defense).
  17. [17] DANIELSON v. WAL-MART STORES, INC. (D.Colo. 2006) (United States District Court, D. Colorado., 2006).
  18. [18] SHAFER v. STICHNOTH (Court of Appeals of Indiana., 2007).