Act of God? Or Act of Man?: A Reappraisal of the Act of God Defense in Tort Law

Abstract

Hurricane Kartrina and similar natural disasters raise significant legal issues. Potentially liable parties quickly invoke the common law Act of God doctrine as a limitation on liability.

However, the defense is severely restricted in its application. For example, the common law held it was inapplicable when an Act of God coalesced with an Act of Man, in other words human negligence, to cause injury.

This article analyzes the traditional Act of God defense while positing that most large scale natural disasters entail human errors, such as in design, construction, operations, maintenance, inspection, regulation, or preparation or response to an emergency. The legal result is the same whether the Act of God is viewed as a defense, duty issue, or intervening causation issue.

Two follow up articles, in a trilogy dealing with the legal issues involved with natural risks and societal responses to emergencies, are The Duty to Disclose Gelologic Hazards in Real Estate Transactions, 1 Chapman Law Review 13 (1998) and Emergency Action Plans: A Legal and Practical Blueprint Failing to Plan is Planning to Fail, 63 U. Pitt. Law Review 791 (2002).

Keywords: Act of God, Katrina, Natural Disasters, Emergencies