Jill Fraley, ‘Re-Examining Acts of God’

For more than three centuries, tort law has included the notion of an act of God as something caused naturally, beyond both man’s anticipation and control. Historically, the doctrine applied to extraordinary manifestations of the forces of nature, including floods, earthquakes, blizzards, and hurricanes. Despite the significance of the doctrine, particularly in large-scale disasters, scholars rarely engage the act of God defense critically. However, recently, the doctrine has received more substantial criticism. Denis Binder argued that the doctrine should be repudiated as merely a restatement of existing negligence principles Joel Eagle criticized the doctrine, suggesting that it should not exclude liability for damages resulting from Hurricane Katrina, but his argument rested more on an issue of fact whether the hurricane was foreseeable-than a critique of the doctrine itself. With so little attention given to this ancient doctrine, scholars have yet to consider the implications of major theoretical shifts in both law and geography that repudiate a separation of “the human” from “the natural.” Notably, this neglect has continued despite significant grappling with defining “nature” and “natural” in other legal contexts such as patents, federal food and drug regulations,” and public lands management or wilderness protection.” Currently, the acts of God doctrine continues its traditional uses in tort, contract, and insurance law, while also being enshrined in new environmental statutes as a method of creating a limit on liability when the polluter might not reasonably have anticipated circumstances-albeit a strict construction of the doctrine.” For example, the Comprehensive Environmental Response, Compensation, and Liability Act applies the acts of God doctrine, as does the Oil Pollution Act. Yet, it is precisely this context of environmental issues that places the most pressure on the theoretical validity of the defense. With increasing awareness of the human role in climatic and weather changes, dividing human from natural or divine action is far from

This article discusses the origins, applications, and utility of the acts of God defense, particularly with an eye towards establishing its theoretical foundations and the reliance on the classical human-nature divide. The article will demonstrate how the crumbling classical divide is already causing shifts in legal doctrines across areas as diverse as food and drug law, wilderness protection, and patents. Then through a deeper engagement with the geographical theory responsible for our renewed vision of the human-nature relationship, the argument establishes a critique of the act of God defense as it has been traditionally formulated. In the final analysis, the article suggests that the act of God defense must be shifted to remove any reliance on a strict divide between human and natural action.

Fraley, Jill, Re-Examining Acts of God (2010). Pace Environmental Law (PELR) Review, Vol. 27, 2010; Washington & Lee Legal Studies Paper No. 2014-7.

First posted 2014-03-02 10:53:54

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