Every superhero needs a place to retreat and think about a case, lick their wounds after a fight, or even occassionally bring a date1. Depending on the hero’s means and persona, that place can take many forms: a one-bedroom apartment, a mansion, a cave, a whole building, a satellite, or a base on the moon2. From time to time these sanctums are infiltrated so many crime fighters put measures in place to prevent, and even repel, trespassers. What duty do the owners of these hideouts owe to would-be intruders? For that matter, what right do they have to build these hidden fortresses without permits and without paying taxes?
Someone who intentionally enters another person’s property without permission or an emergency3, or who remains on the property after permission has been revoked, is a trespasser. While trespass requires a physical intrusion (so intrusion by noises, lights, smells, and other “intangibles,” doesn’t qualify), the intrusion doesn’t have to be by someone’s body. If a hero or villain attaches a tracker to their adversary with the intent that that tracker end up in the hideout or lair of the person its attached to, a trespass has occurred.
At common law the duty owed by land owners to persons entering their land depended on the status4 of the person entering, and in general, trespassers were owed no duty. Because a trespasser is generally either unknown or unwanted, it would be unfair to impose a duty to protect them or warn them of dangerous conditions on the land. The landowner would have been happy to never have the trespasser enter their land so the invader assumes all the risk when coming onto the property.
Some trespassers are not unknown. These so-called “discovered trespassers” or “anticipated trespassers” are owed a slightly heightened duty by a land possessor. If someone knows that people will be entering the property, or is aware that something on their property or characteristic thereof will entice trespassers, they have a duty to warn. Man-made, concealed, and unnatural dangerous conditions that could result in serious bodily harm must be made known. Essentially, you cannot set a trap if you’re pretty sure someone will be coming along to spring it (the law has historically not been very fond of booby traps).
Man-made, concealed hazards that appear in superhero hideouts are intentionally put in place to thwart villains. The owners of these properties know full well that their adversaries will be looking for them and that the very act of fighting crime will induce these individuals to enter their property, putting them at risk. To avoid liability, Batman should have a sign at the entrance to the Batcave that reads “Dangerous conditions, no trespassers!” or something similar so that the Joker can make an informed decision when choosing whether or not to proceed. While a more substantial warning is required when entrants to land are there with permission, a general warning sign is all that is owed to a trespasser. Further, if there are dangerous conditions on a superhero’s property that the hero is not aware of, that hero is not required to try to discover such conditions.
Attractive Nuisance – when a child trespasser enters property that contains what is known as an “attractive nuisance,” the landowner may be liable for injuries whether or not the hazard was man-made or natural, known to the owner or not. While the list of juvenile villains is admittedly short, Anarky, a Batman villain, and Billy Numerous, an adversary of the Teen Titans, would both qualify under this doctrine. Under the Restatement of Torts5, Batman and the Teen Titans would be liable for any harm that resulted from their security measures if the young villains could establish that 1) It was likely that as enemies of Batman and the Teen Titans, they would try to trespass and that the respective heroes were aware of their status as minors, 2) the security measures put in place by the heroes represented an unreasonable risk, 3) as children they were unable to realize that risk, 4) the utility of danger outweighed the risk, and, 5) there was a lack of reasonable care by the landowners to eliminate the danger. Obviously the fifth element would be satisfied because the traps were intentional. Arguably it is a foreseeable activity of villains to seek the safe haven of heroes so the first element would be satisfied as well. Where Anarky and Billy Numerous would have the most difficulty would be in establishing that as children they were unable to realize the risk. While an ordinary child would probably not expect to encounter traps when investigating a house or even a cave, children that engage in adult behavior are often treated as adults under the law. If a child who decides to get behind the wheel of a car can be legally treated as an adult, one who decides to bring down the government or rob a bank would certainly be characterized as an adult able to anticipate and realize the danger involved in their chosen activities.
Permits, Taxes, and Jurisdiction
The building of almost any significant structure requires extensive government regulation, the issuance of permits, and the payment of property taxes. At the close of the movie Batman Begins we see Bruce Wayne and Alfred discussing the destruction of Wayne Manor as an opportunity to expand on the Batcave (previously an undeveloped, naturally occurring, cave). Scenes where Alfred stands in line to pay for permits or waits around for building inspectors must have been edited out of Dark Knight.
To avoid having municipal employees examine architectural drawings of their “secret” hideouts, many heroes choose not to build and use preexisting structures, while others build beyond the jurisdiction of the government. Two examples are Superman’s Fotress of Solitude, usually depicted near the North Pole, and the Justice League’s Watchtower, which orbits the Earth.
The North Pole
No one owns the North Pole, therefore no one is regulating Superman’s fortress. At various times, however, the Canadian government has exercised sovereignty over activity within the region unchallenged by other governments6. Therefore, Superman may want to brush up on Canadian building codes and look into penalties for back taxes.
While the exact location of the Fortress of Solitude has varied, as least one comic7 placed it just outside the “unclaimed” region of the North Pole and within United States jurisdiction. In this issue the land under the fortress was sold to an oil developer along with Superman’s hideout. Superman, who at that time was unable to break any laws, was advised that he was legally a squatter and did not try to reclaim his home. He did, however, interfere with the oil drilling operation so that the company that bought the land would leave. Apparently Superman’s oath to obey the law did not include civil rules as his conduct would likely be classified as tortuous interference with contract.
Under The Outer Space Treaty (UN) of 1967, space is a global commons that can be used by all countries and owned by none. Similar to the North Pole, there is no country that can make a legitimate claim to jurisdiction over the Justice League’s satellite or moon bases. While it is true that once in space the Justice League would be left to their own devices, most countries have laws governing the launch of space objects from their surface and generally regulate anything in space that originated from within their territory.
IN THE NEXT EXCITING INSTALLMENT
So far we have only discussed superheroes as potential defendants. Next week we start considering lawsuits that could be brought by these heroes for everything from defamation to battery.
1 – In the movie Superman 2 Lois and Superman spend a few weeks at the Fortress of Solitude while Zod and his followers terrorize Metropolis.
2 – The Question bases his operations out of a small apartment filled with bulletin boards and other peoples’ garbage; Dayton Manor is home to the Doom Patrol; Batman and the Green Arrow both have cave-based hideouts; The Fantastic Four live and work out of the Baxter Building; the Justice League’s Watchtower has been both an orbiting satellite and a base on the moon.
3 – When faced with an emergency situation, generally threat of death or serious bodily injury, an individual may trespass on another’s property and remain there until it is safe to leave. While trespassing, however, they are liable for any damage they do to the property.
4 – Invitees enter land with permission from the owner for the owner’s benefit. Licensees also have permission to enter but are there for their own purposes.
5 – Restatement of Torts Section 339.
6 – The Canadian government once issued a citation for littering to a pilot who crash landed near the North Pole for failure to clean up the debris.