No, I don’t mean to start a discussion over the existence of a deity or whether that entity intervenes in the material world. I am sure Walter would permanently disown me for starting such a food fight on his blog. No, what I mean is, does the legal term “act of god” have any meaning nowadays vis a vis liability, or are all damages now necessarily someone’s fault?
The other day I listed some of the litigation and threats of litigation we get in our public contact business (Feb 20). Another common claim we get is from damages our customers suffer to their property due to what I would call natural events or from meeting up with inevitable natural hazards (e.g. hitting a rock while off-roading). Let me give a specific example that is not real but is typical of these claims.
A customer drives into a National Forest campground we operate. During their stay, on a particularly windy day, several trees fall over including a large tree that crushes the roof of their camper. Is this an act of god? Or am I, as I can assure you every such customer and insurance lawyer out there seems to believe, liable for the damage to their car?
Well certainly, one criteria would be whether I exercised due care in maintaining the health of the trees in public areas. And in fact we have a hazard tree process where experts from the US Forest Service, whom a reasonable person would consider the best in their field, assess the health of trees in public areas and mark trees that might pose a danger of falling for us to remove. Lets posit that we had just completed this process, and the tree that fell looked healthy to all the experts. I guess the question is, in today’s legal environment, is there any such thing as being able to prove “all due care”, or in effect does the accident itself serve as prima facia evidence that due care was not exercised, even if no one can think of what else could be done? Comments are open.
7 Comments
If A Tree Falls In The Woods Is Warren Meyer Liable?
Warren Meyer at Overlawyered starts with a fair question, Do Acts of God Still Exist? He then provides a hypothetical scenario and invites comments. My comment i…
If A Tree Falls In The Woods Is Warren Meyer Liable?
Warren Meyer at Overlawyered starts with a fair question, Do Acts of God Still Exist? He then provides a hypothetical scenario and invites comments. My comment i…
“in effect does the accident itself serve as prima facia evidence that due care was not exercised, even if no one can think of what else could be done?”
There have been plenty of lawsuits (many of them WON) chronicaled on this very site that match that description perfectly.
Actually, there have been several lawsuits worse than that – an additional action is suggested, but it would have caused far MORE harm… just to other people. (Quick example: plate glass in vehicle windows. Also, there was a case about how easily car seats crumple… when the other 6 passengers were uninjured specifically BECAUSE the seats crumpled thusly.)
It may not be much consolation but I still believe in accidents – God knows after 32 years of rugby I’ve had my share đŸ™‚
The most insidious thing about this to me is the fact that the efforts to provide “due care” are being used as evidence to convince a jury that things were dangerous.
In your example I could imagine the lawyers saying that, because you checked for dangerous trees you knew there could be a problem and rather than removing all trees or stapling a warning to the forehead of everyone using the park you didn’t do enough to make sure that people were safe.
Personally I think we’re seeing a return of the “diminished responsibility” theory except that the victim is now using it instead of the defendant.
Keep an eye on post-Katrina litigation over the next few years. Lawyers in Louisiana were chomping at the bit when the Army Corps of Engineers dug up the foundations pilings for the infamous 17th Street levee, only to be disappointed when their measurements turned out to be consistent with specifications. Those attorneys had a “damn-it’s-an-act-of-God” look in their eyes that day.
Of course, that may not stop anyone, and the Corps may have in fact been derelict in its duty. But even so, all this begs the question why state and local officials would so enthusiastically entrust their constituents’s fates in people whose track record is spotty and whose attention may have been less keen than those who would be effected by failure. And once that fateful decision was made, why didn’t state and local officials more zealously monitor the corps’s work?
Never mind zealously – why didn’t they monitor the levees at all?
I think we are about to see an explosion of litigation, as more and more lawyers get into these bizarre lawsuits. I can think of three areas to watch:
-as skin cancer rates increase, manufacturers of sun block 9and tanning salons) ought to be wary
-ski areas: no longer will disclaimers 9about the dangers of the sport0 protect owners against lawsuits
-manufacturers of alcoholic beverages..this looks to fertile ground.
yes, the Hurrican Katrina flooding of new Orleans will keep many lawyers employed-especially if one can sue the US Government/FEMA, whatever. apparently, natural disasters are not something to be accpeted-if the government fails to warn, they can be sued.
Redistributing other peoples’ money is the new great american pastime. Witness the gambling fever that has overwhelmed many areas. Watch popular television as often as you can (without getting sick–turn it off when you feel nauseous)