It is quite universally held that a casualty cannot be ascribed exclusively to an act of Cod thus excluding liability where any human agency has intervened in or contributed to the result (Cachick v. U.S. (D. III.) 161 F.
5upp. 15), and hence where by act or negligence such intervention is alleged it becomes a matter for a jury as triers of fact. 'Negligence, it must be repeated, is conduct which falls below the standard established by law for the protection of others against unreasonable risk. It necessarily involves a foreseeable risk, a threatened danger of injury, and conduct unreasonable in proportion to the danger' (Prosser, Law of Torts, 4th ed.). While lightning is notorious as an act of God within the comprehension of the law, 'when the negligence of a defendant "concurs" with an act of God, which is to say an unforeseeable force of nature, he is to be held liable' (Prosser op. cit., and see Manila School Dist. No. 15 v. Sanders, 1956, 226 Ark. 270, 289 S.W.2d 529). Honouring the familiar maxim causa causea est causa causati plaintiff avers, albeit in more homespun language, such concurrence on the part of party to the action by impleader the creator of Cyclone Seven in situ and there stipulated 'to stand freely exposed to natural forces' (Szyrk, supra). Where plaintiff further alleges that these impediments to its removal were swept away by the appeals court decision reversing this major provision in Szyrk, supra, defendant's disclaimer on grounds of the lack of a demolition permit required by municipal ordinance for such a procedure which, in the usual course of events would be issued by and to itself, has provoked the further charge of conspiracy wherein plaintiff cites the prominent presence on the Village Board of one Mel Kandino-poulls as chief obstacle to such issuance, submitting in evidence the expanding premises of Mel's Kandy Kitchen in the form of a sunny new dining area overlooking Cyclone Seven and a printer's dummy of a projected new menu offering quiche Lorraine, caesar salad with arugula, sangria and similar enticements to the sophisticated palates of prosperous out of town visitors where hoagies and a Bud by local custom had hitherto prevailed. These charges were dismissed by the court under common law immunity for public officers, based less on the 'desire to protect an erring officer… (than on) a recognition of the need of preserving independence of action, without deterrence or intimidation by the fear of personal liability and vexatious suits' Restatement, Second, Torts 895D, see also Learned Hand, J., in Gregoire v. Biddle (2d Circ. 1944)177 F.2d 579.
in dismissing these allegations in toto the court found plaintiff's claims to be lodged in pure conjecture with no facts alleged to support recovery of the chattel safe and unharmed upon or during removal of the vehicle of its detention. Were we now ourselves to stray beyond these posted limits in further pursuit of the matter our path would soon be joined with that taken at excessive speed through the State of New Jersey by the defendant who arrived therewith for an on time appointment in Philadelphia with a bolt of lightning (compare Berry v. Sugar Notch Borough, 1899, 191 Pa. 345; Doss v. Town of Big Stone Gap, 1926, 145 Va. 520,134 S.E. 563), an appointment better kept in Samara by that special breed of novelist driven by despair to embrace vthe unswerving punctuality of chance' (cit. omitted), sinking us deeper in the twilight of confusion from whence we shall now emerge inter canem et lupum, as it were.
In examining defendant's claim that plaintiff should have been nonsuited by the court and the case dismissed as a matter of law as an vact of God/ we have taken judicial notice of plaintiff's objection to the jury charge as it centered upon that phrase time honoured since its introduction by that contemporary and rival of the aforementioned Francis Bacon at the court of Elizabeth I, England's first Lord Chief Justice Lord Edward Coke. While far from questioning his piety, it behooves us to recall Lord Coke's diligent concern for the common over the ecclesiastical law then so prevalent in addressing ourselves to its vulgar version confronting the bench today in modern dress.
By 'an act of God' the law denotes a natural and inevitable phenomenon occurring beyond human origin and intervention, it is that simple, and the high tension natural discharge of electricity in the atmosphere known as lightning must clearly qualify to head such a list. 'But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collarbone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.' (Holmes op. cit. Lecture I). Like the cat's clavicle, this 'act of God' has survived elsewhere as Deo juvante, Deo volente, ex visitatione Dei from depictions of the supreme god Jove in Roman mythology clutching bolts of lightning, hearkening back to prehistoric man cowering in terror from these flashes splitting the heavens with the voice of thunder to be placated, at any cost to reason, by fabricating privileged relations with the Deity as magic despaired and became religion. Thus even in our own time if not careful we may find ourselves sharing a ride with the defendant in Breunig v. American Family Ins. Co. whose special relationship to God as 'the chosen one to survive at the end of the world' led her to 'believe that God would take over the direction of her life to the extent of driving her car' so that just before striking the oncoming truck she was confident 'that God was taking ahold of the steering wheel' (45 Wis.2d 536, 173 N.W.2d 619).
On the other hand the proceedings in the case here under appeal were only further inflamed by the brief submitted by an ironically labeled amicus curlae on behalf of cross-claimant Mr Szyrk quoting from the writings of E M Cioran '(dontemplating this botched Creation, how can we help incriminating its Author, how — above all — suppose him able and adroit? Any other Cod would have given evidence of more competence or more equilibrium than this one: errors and confusion wherever you look!'
When an issue of proximate cause arises in a borderline case…' wrote Chief Judge Magruder in Marshall v. Nugent (U.S. Court of Appeals, 1st Circ, 1955. 222 F.2d 604), 'we leave it to the jury with appropriate instructions. We do this because it is deemed wise to obtain the judgment of the jury, reflecting as it does the earthy viewpoint of the common man — the prevalent sense of the community' which found broad expression in the testimony of witnesses called to assist this jury in its deliberations. There, 'God struck that (expletive) pile of (expletive) with his good old lightning because it's a (expletive) abomination on this beautiful land the Lord give us here, some old pup got in the way that's just a accident,' contended with 'God He don't have accidents, wouldn't never have struck a poor dumb little creature like that, Bible says right there He marks the sparrow's fall don't it?' provoking the rude rejoinder 'Don't say He does nothing about it though does it?' However these earthy viewpoints may reflect disagreement, Cod presides over both in common with plaintiff's objection to the court's instructions to the jury as implying divine culpability in the matter before us through its use of the phrase 'an act of God.' With all respect due the parties, the jury, the Cod fearing community, and the common man of which it seems to have more than its share of over half this country's population planning an afterlife in the felicitous company of Jesus and even Cod himself, belief in God has neither bearing upon nor any relevance to these earthbound proceedings, in short, He may enjoy as much room in your hearts as you can afford Him, but God has no place in this court of law.