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Case 9.2
EAST CAPITOL VIEW COMMUNITY DEVELOPMENT CORP., INC., V. ROBINSON
District of Columbia Court of Appeals
941 A.2d 1036; 27 L.E.R. Cas. (BNA) 1222; 2008 D.C. App. LEXIS 27 [February 7, 2008]
FACTS:
East Capitol (Appellant) hired Denean Robinson (Appellee) under a written employment contract
for a one-year term.
Before the term ended, Robinson was informed that her employment would terminate early due to
East Capitol’s lack of funding.
The contract stated that Robinson’s employment was “contingent on achieving all performance
goals and outcomes.” There was no language regarding termination due to lack of funding.
Robinson filed suit against East Capitol for breach of contract.
East Capitol argued that Robinson was an employee-at-will and could be terminated at any time.
Appellant’s counsel did not request “impossibility of performance” as part of the jury instructions.
Later, East Capitol’s counsel asked for such an instruction, and the court denied the request.
The jury returned a verdict for Robinson, and East Capital appealed.
PROCEDURE: The Superior Court of the District of Columbia entered a judgment for Robinson.
ISSUE: Whether East Capitol had an excuse of impossibility or commercial impracticability for
terminating Robinson’s contract due to the cancellation of its grant funding?
RULE: “A party’s obligation to perform under a contract may be excused if performance is rendered
impossible. To establish impossibility or commercial impracticability, ‘a party must show (1) the
unexpected occurrence of an intervening act; (2) the risk of the unexpected occurrence was not
allocated by agreement or custom; and (3) the occurrence made performance impractical.’”
REASONING:
1. A party generally assumes the risk of his own inability to perform his duty. Even if a party contracts
to render a performance, which depends on some act by a third party, he is not ordinarily
discharged because of a failure by that party.
ADDITIONAL INFORMATION:
The party asserting the defense of impossibility bears the burden of proving “a real impossibility
and not a mere inconvenience or unexpected difficulty.”
Courts generally only excuse non-performance where performance is objectively impossible—
