Vol. 84, No. 4, April 2011
Most lawyers learned about the vis major defense in law school, then forgot about it. Under the doctrine, a defendant is insulated from liability for personal injury or property damage caused by an act of God, that is, a natural cause.
The defense is rarely used. However, it may become more common in the future. One prediction related to global warming is that catastrophic weather events such as hurricanes, tornados, and torrential rains will occur more often. All of these have the potential for causing extensive personal injury and property damage. Therein lie the seeds for more frequent use of the vis major defense. Is it still viable? How might it apply as a defense to tort or contract liability?
The Legal Definition of ‘Act of God’
“‘Act of God’ in its legal sense means such inevitable accident as cannot be prevented by human care, skill, or foresight.”1 Black’s Law Dictionary defines an act of God as “An act occasioned exclusively by violence of nature without the interference of any human agency. A natural necessity proceeding from physical causes alone without the intervention of man. It is an accident which could not have been occasioned by human agency but proceeded from physical causes alone.”2
Vis major is similarly defined, as “A greater or superior force; an irresistible force. A loss that results immediately from a natural cause without the intervention of man, and could not have been prevented by the exercise of prudence, diligence, and care. A natural and inevitable necessity and one arising wholly above the control of human agencies, and which occurs independently of human action or neglect.”3
Application of the Defense in Wisconsin
Most Wisconsin cases addressing the act of God defense involved landlords and tenants or common carriers of goods. Although the defense might seem out of date, it actually has been at issue just as often in newer as in older case law. From 1890 to 1950, the defense was analyzed in seven reported cases.4 Between 1950 and 2010, the defense was invoked and interpreted in nine cases, six of which resulted in published opinions.5
Although, the vis major defense is recognized in Wisconsin, it is not argued or applied very often, especially in the context of negligence claims. Likely, this is because “[n]early all the various definitions of an act of God require the entire exclusion of human agency from the cause of injury or loss.”6 The defense “cannot be successfully made where the injury could have been avoided by human precaution.”7 When “the result of an act of God is, in part, ascribable to the participation of man, either through active intervention or neglect or failure to act, the whole occurrence is thereby humanized, and is generally removed from the operation of the rules applicable to the acts of God….”8
Complete exclusion of human cause is a difficult standard for a defendant to overcome, which likely explains why the defense is not commonly argued or upheld. As a result, modern courts sometimes characterize acts of God as “unavoidable accidents” because, although the terms often are synonymous, unavoidable accidents need not be free from human agency.9
More from the author ...
In this video, coauthor Tiffany Jones discusses whether the act of God defense is still viable and, if so, how it might apply as a defense to tort or contract liability. Available with the April 2011 Wisconsin Lawyer online at www.wisbar.org/wl. You also can find this video at YouTube.com/StateBarofWI.
When the act of God defense was first developing, courts held that the damages were the result of a pure accident. For example, in Miller v. Town of Casco,10 the plaintiff brought an action to recover damages for injuries she suffered after being thrown from her buggy while riding on a highway in the defendant town. The jury found that despite there being a hole in the road with sticks protruding from it, the highway was not defective; the horse was of ordinary gentleness but was frightened by the sticks; and the driver was not guilty of any contributory negligence. The court of appeals was asked to determine whether such findings of fact were inconsistent. The Miller court explained that “[t]he negativing of negligence on one side does not, in such a case as this, necessarily involve the conclusion that there was negligence on the other side. Accidents for which no one can be held responsible frequently happen.”11 The Miller court affirmed the jury’s finding that the event causing injury was a pure accident for which no one was liable.
In some situations in which the goods of a common carrier were damaged because of a natural event, defendants invoked the act of God defense to argue that the plaintiff could not establish proximate cause. In Bell Lumber Co. v. Bayfield Transfer Railway Co.,12 the plaintiff’s lumber was to be transported by way of the defendant’s railway. However, the defendant failed to provide cars to transport the plaintiff’s lumber because the railway was being repaired. Subsequently, by no fault of the defendant, a forest fire broke out, damaging the plaintiff’s lumber. The defendant relied on a Minnesota Supreme Court decision, Northwestern Consolidated Milling Co. v. Chicago, B.& Q. Ry. Co.,13 to support its argument that the fire was an act of God and unavoidable, thereby relieving the defendant of any liability.
In Northwestern, flour was being transported from Minneapolis to Bellington, W. Va., via the defendant’s railway. The cars reached Columbus, Ohio, where they remained in the railroad yards for an additional six days until they were destroyed by an “unprecedented flood.” The Bell Lumber court noted that the flood in Northwestern was as likely to happen to an on-time shipment as to a delayed shipment. Therefore, in Northwestern, the act of God (the flood), and not the delay, was deemed the proximate cause of the loss.
Notwithstanding Northwestern, the Bell Lumber court held that the defendant in Bell Lumber was liable for the lost shipment, reasoning that the lumber was lying in a place known to be subject to a greater fire risk than would exist while the lumber was in transit or at its destination. “When it is reasonably probable that an injury from an anticipated source may result to another from a failure to perform a duty owing to him then the failure to perform such duty is the proximate cause of an injury sustained through such probable anticipated source.”14 Because the defendant knew that the freight was exposed to the danger of a forest fire, it was thus foreseeable that the longer the freight was delayed, the more likely it would be exposed to a fire. Thus, the court held that the danger was anticipated or foreseeable, and the defendant’s failure to remove the lumber from an area known to be subject to the risk of forest fires was an intervening human element and the proximate cause of the damage.
Randy S. Parlee, Marquette 1983, is with Peterson, Johnson & Murray S.C., Milwaukee. His areas of trial practice include general insurance defense, product liability, medical malpractice, and insurance coverage. He is a frequent writer and speaker, and an adjunct professor at Marquette.
Tiffany J. Jones, Marquette 2009, also is with the firm and practices in civil litigation.
More recently, though still more than 40 years ago, a Wisconsin court again confronted the act of God defense. In Lee v. Milwaukee Gas Light Co.,15 the plaintiff was standing on a sidewalk about six feet from a building and a window. High wind speeds that day caused the window to pop outward and shatter. A piece of the shattered glass entered the plaintiff’s eye. The defendant building owner argued that it was unforeseeable that strong winds would cause the window glass to shatter and injure the plaintiff. The plaintiff’s expert testified that the standard in the Milwaukee window industry is for window glass to be built to withstand wind speeds of up to 65 miles per hour. On the day of the accident, the wind speed did not exceed 23 miles per hour. The court dismissed the possibility that there was a defect in the glass per se.
Since a specific defect in the window could not be identified, the plaintiff in Lee relied on the doctrine of res ipsa loquitur to argue for imposition of liability. Although the exact reason for the window popping outward went unexplained, the court found that the accident would not have occurred in the absence of negligence. The defendant argued that he recently had the windows inspected and therefore met his duty of care. However, “this argument [did] not answer the question of whether such a device or installation was sufficient to free the defendant from negligence.”16 Consequently, the defendant’s act of God defense was denied, particularly because there was “no evidence to justify the conclusion the wind was of such force as to be unforeseeable as a probability in Milwaukee.”17 As a result, the injury could have been avoided by human precaution, and the defendant was liable, under res ipsa loquitur, for the manner in which the window was installed.
In considering whether wind speed could be deemed an act of God and the proximate cause of the plaintiff’s injuries, the Lee court noted that a 36-mile-per-hour wind was considered foreseeable and not an act of God in a Texas Court of Appeals decision, Leonard Bros. v. Newton.18 Whether an 80-mile-per-hour wind constituted an act of God was considered a jury question in Uggla v. Brokaw, a New York Court of Appeals decision.19 In contrast, in King v. Queen Anne Food Products, also a New York Court of Appeals decision, a 75-mile-per-hour wind during a hurricane with only a 20-minute warning was held to excuse the defendant.20 Therefore, whether strong winds will be deemed an act of God is fact specific, and whether an alleged act of God is foreseeable may depend on the geographic region.
Generally speaking, then, the vis major defense can apply to a case involving damage or injury by a natural force, but only in situations in which that force is strong enough to overcome and negate any potential contributory cause by a human agency. The issue is whether the magnitude of force is reasonably foreseeable such that a defendant should have taken precautions to avoid personal injury or property damage resulting from it. For example, a 55-mile-per-hour wind gust, though rare, is reasonably foreseeable in Wisconsin. However, a 200-mile-per-hour tornadic wind is probably not; the vis major defense would apply to personal injury or property damage caused by such a force, even if a human agency (for example, a product such as a window or door) was involved.
The same likely holds true with respect to rain. An hourly rainfall of three inches, while heavy, is not unforeseeable in Wisconsin; an eight-inch hourly rainfall probably is. A basement collapse would probably implicate the vis major defense in favor of a basement contractor in the latter circumstance but not in the former circumstance. When property damage or personal injury is caused in part by a natural force and in part by a human instrumentality, the plaintiff should argue that the natural force was foreseeable and should have been anticipated in a manner that would have avoided the damage. The defendant then has the burden to establish that the natural-force component of the cause was so large and so overwhelming that it was not reasonably foreseeable.
The act of God defense is as common today as ever. Nevertheless, it is still not relied on very often, likely because of the difficulty of proving that human elements played no role in causing an injury.
If the meteorological predictions concerning global warming come to fruition, more extreme weather events will likely expand potential application of the vis major defense. However, as these events become more common, the standard of what constitutes a reasonably foreseeable natural force will doubtless itself expand. This again would limit application of the vis major defense insofar as defendants become obligated to anticipate and account for effects of more extreme and dangerous natural phenomena, especially those associated with the weather.
1Eleason v. Western Cas. & Sur. Co., 254 Wis. 134, 138, 35 N.W.2d 301 (1948).
2Black’s Law Dictionary 37 (8th ed. 2004).
3Id. at 1603.
4Jackson v. Wisconsin Tel. Co., 88 Wis. 243, 60 N.W. 430 (1894); Miles v. Stanke, 114 Wis. 94, 89 N.W. 833 (1902); Vogt v. Hecker, 118 Wis. 306, 95 N.W. 90 (1903); Bell Lumber Co. v. Bayfield Transfer Ry. Co., 169 Wis. 357, 172 N.W. 955 (1919); Boehm v. Wermuth, 194 Wis. 82, 215 N.W. 18 (1927); Joseph Miller Co. v. Gateway City Transfer Co., 247 Wis. 584, 20 N.W.2d 651 (1945); Eleason, 254 Wis. 134. In these cases, the courts interpreted and analyzed the defense with respect to the facts of the case, rather than merely mentioning the defense.
5Lee v. Milwaukee Gas Light Co., 20 Wis. 2d 333, 122 N.W.2d 374 (1963); Fondell v. Lucky Stores Inc., 85 Wis. 2d 220, 270 N.W.2d 205 (1978); Ransome v. Wisconsin Elec. Power Co., 87 Wis. 2d. 605, 275 N.W.2d 641 (1979); Handicapped Children’s Educ. Bd. of Sheboygan County v. Lukaszewiski, 112 Wis. 2d 197, 332 N.W.2d 774 (1983); Edwards v. Indianhead Food Prods. Inc., No. 82-1335, 1983 WL 161858 (Wis. Ct. App. March 22, 1983) (unpublished opinion); Millonig v. Bakken, 112 Wis. 2d 445, 334 N.W.2d 80 (1983); White v. Georgia-Pacific Corp., No. 92-2571, 1994 WL 5720 (Wis. Ct. App. Jan. 12, 1994) (unpublished opinion); Johnson v. Dahle, No. 98-0660, 1998 WL 866084 (Wis. Ct. App. Dec. 15, 1998) (unpublished opinion); Forster v. Mutual Serv. Cas. Ins. Co., No. 98-1694, 2000 WL 31520 (Wis. Ct. App. Jan. 18, 2000) (unpublished opinion).
61 Am. Jur. 2d § 3, at 817.
7Id. § 4, at 818.
857 Am. Jur. 2d § 563, at 549.
9Linden v. Miller, 172 Wis. 20, 23, 177 N.W. 909 (1920); see also 12 A.L.R. 665.
10116 Wis. 510, 93 N.W. 447 (1903).
11Id. at 516.
12169 Wis. 357, 172 N.W. 955 (1919).
13160 N.W. 1028 (Minn. 1917).
14Bell, 169 Wis. at 361.
1520 Wis. 2d 333, 122 N.W.2d 374 (1963).
16Id. at 338.
1871 S.W.2d 613 (Tex. Ct. App. 1934).
19102 N.Y.S. 857 (N.Y. App. Div. 1907).
20173 N.Y.S. 2d 975 (N.Y. App. Div. 1958).