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W&L Law Prof. Jill Fraley on 'Acts of God' in NYT Room For Debate

Last week’s devastating typhoon in the Philippines prompted much speculation about disaster preparedness and ignited a debate over whether so-called “acts of God” absolve humans of liability. Typhoon Haiyan didn’t surprise anyone, so should government officials in the Philippines be held responsible for not doing more to prepare the country for the storm’s onslaught?

Washington and Lee law professor . In her commentary, Fraley traces the origin and uses of the “act of God” defense, which once encompassed both natural events and those caused by humans.

“Many older references pair the phrase with ‘acts of strangers,’ meaning acts caused by persons not before the court. A common element existed between the natural and human events: the defendant was ‘without the possibility of preventing the harm’, ” Fraley writes.

But eventually, Fraley argues, the concept narrowed to apply only to sudden and unavoidable natural events like floods or storms. Nevertheless, the fact that a defendant had no ability to prevent harm from a natural disaster remained central to the act of God defense.

However, Fraley questions whether the historical purpose of the act of God defense is still relevant given our ability to forecast many potential disasters well in advance.

“When we are increasingly able to model climate change and anticipate the frequency and severity of storms, and even to model methods of storm protection such as wetlands preservation and restoration, should we so easily find that parties are beyond blame?”

You can read Fraley’s entire commentary and those of the other contributors at the New York Times website.