The Trouble With the ‘Acts of God’ Defense in Texas

August 3, 2009

The phrase “act of God” has a rich pedigree and interesting etymological history. Under Roman law, mercantile obligations arose from duties and contracts. If someone had a legal or contractual duty to do something, a judge could grant an essoin (excuse) for a failure to perform due to, for example, being detained by a superior force, or vim maiorem.

In the Middle Ages, with the growth of mercantilism and the middle class, judges began to consider that vis maior, similar to the French force majeure and the Scottish damnum fatale, especially if attributable to natural disasters, could excuse a person from liability. For example, a tenant farmer did not have to pay rent if his crops were destroyed by vis maior. Violent storms and pirates exempted a ship owner from responsibility for his cargo.

But by the 17th Century, English judges were discounting these act of God defenses. In 1609, a court ruled that a fire caused by lightning was an act of God. In 1785, a court ruled that a fire not caused by lightning was not an act of God. And by the 19th Century, courts routinely rejected claims that acts of God were responsible for what otherwise was considered human negligence.

Inferential Rebuttal Defense

Our firm regularly represents electric utility companies and rural electric cooperatives in Texas sued as the result of wildfires. These fires are usually attributable to electric lines that separate or are blown down during high wind conditions coupled with drought, low humidity and dead vegetation.

Early in our work in these matters, the question most often asked by colleagues, family and friends was: “But isn’t that an act of God?” Though the answer is an unequivocal “yes”, Texas law defines and uses this inferential rebuttal legal defense in a different way than is commonly understood or used by laypersons.

In Texas, the inferential rebuttal defense of “act of God” is given as an instruction in the jury charge immediately after the definition of “proximate cause” and before the question regarding whether the parties were negligent.

The Texas Pattern Jury Charge sets out the exact language of the instruction for the “act of God” defense:

“If an occurrence is caused solely by an ‘act of God’, it is not caused by the negligence of any person. An occurrence is caused by an act of God if it is caused directly and exclusively by the violence of nature, without human intervention or cause, and could not have been prevented by reasonable foresight or care.”

The “act of God” affirmative defense is a variation of the “unavoidable accident” inferential rebuttal, and requires that the occurrence be caused directly and exclusively by the violence of nature. This exclusivity requirement creates the problematic limitation of the affirmative defense and its use.

In order for a Texas Court to allow an “act of God” instruction to be included in the Court’s Charge, there must be some evidence to support that the phenomenon of nature could not have been reasonably foreseen. So, what may or may not be reasonably foreseen by a defendant in a position to take some remedial action to prevent that occurrence is almost always an issue.

It would seem apparent that a plaintiff would argue that an “act of God” instruction has no applicability to a case whenever there is an allegation that some negligent act or omission was a proximate cause of an occurrence, but not necessarily the only cause.

However, in Galveston, Harrisburg & San Antonio Railway Co. v. Crier the court responded to the plaintiff’s arguments that a train derailment during a cyclone was not the result of an act of God, but instead was the result of the defendant railroad (1) failing to properly maintain its facilities and (2) negligently driving its locomotive into harm’s way.

Justice Neill addressed the Plaintiff’s logic through references to the Biblical book of Job:

… “‘It left death and destruction along its path, and wailings above ruined homes and untimely graves. If this terrible destruction was not the act of Him who ‘putteth forth his hand upon the rock and overturneth the mountains by [the] roots’, then may it be said of man, instead of God, ‘He stretcheth out the north over the empty place, and hangeth the earth upon nothing’.

“If not a sacrilege, it is at least preposterous to say that the destruction of this mighty force of nature was proximately produced by the concurrence of the puny hand of man. …

“A reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can foresee as probable, nor waste his time in anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. …”

Every defendant in a lawsuit should hope that a judge and jurors take a similar common-sense approach to unforeseeable acts of nature that result in harm to persons or property. But in the absence of the availability of an “act of God” instruction, what then can a defendant submit? In Texas the answer is the “unavoidable accident” instruction.

Unavoidable Accident

The Texas Pattern Jury Charge gives the specific language to be used in an “unavoidable accident” jury instruction:

“An occurrence may be an “unavoidable accident”, that is, an event not proximately caused by the negligence of any party to the occurrence.”

This inferential rebuttal is also given immediately after the definition of proximate cause, as with the instruction regarding “act of God”.

However, Texas law disfavors the use of multiple inferential rebuttals because of a concern that multiple inferential rebuttal instructions have the potential to skew the jury’s analysis. Therefore, a defendant must consider which inferential rebuttal is most advantageous under the facts.

Since the “unavoidable accident” instruction does not require that the occurrence be caused directly and exclusively by the violence of nature, the “unavoidable accident” instruction is preferred by defense counsel in most instances.

In summary, while the “act of God” inferential rebuttal defense remains available in Texas, it has severe limitations. Specifically, because of the exclusive causation requirement in the “act of God” instruction, it is usually preferable to argue the submission of the “unavoidable accident” instruction instead.

Thankfully, no matter which inferential rebuttal the court may allow, it will also require proof of foreseeability; that is, that the defendant through exercising only ordinary care should have foreseen that the event might reasonably result from the act or omission.

Phil Romero and Nick Nicholas are shareholders with the Dallas firm of Downs & Stanford, P.C.

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