Superhero Plaintiffs — This looks like a job for…my attorney!

by on Sep.23, 2009, under Constitutional Law, Criminal Law, Torts

“There’s been a mix up in the lab!” “The experiment can’t be stopped!” “Who’s that on the test field?!” “Are we missing a spider?” “Watch out for that kid!” So many superheroes start their crime fighting careers as accident prone individuals who fall victim to an industrial waste spill or a top-secret experiment gone awry. These accidents could lead to more than just superhuman abilities as toxic torts could mean big bucks for our heroes.

Until now the focus of this blog has been the legal challenges that superheroes would face and the legal implications of their actions. While the possibilities for these heroes as defendants are numerous, a fair number of complaints could be filed on their behalf as well. What rights do superheroes have against the villains who try to kill them or even those responsible for the events that gave them their powers?

Attempted Murder

I have read about and watched thousands upon thousands of attempted murders in comics and movies but I’ve never seen one of those superhero victims press charges1. Under the Model Penal Code, an actor is liable for murder if they take a substantial step that is strongly corroborative of their intent and purpose to kill. When a crime fighter demands that a villain stop their crime and that villain shoots at the hero or deploys some elaborate trap meant to end their life they have committed a crime. Whether the hero is able to escape unharmed is irrelevant because a substantial step has been taken in an attempt to kill.

Why then do so many superheros spend so much time trying to figure out their adversary’s plans and collecting evidence when they can just bring them in for attempted murder? The primary reason is probably a clause in the 6th Amendment to the Constitution, which states that individuals being prosecuted for criminal activity have the right to confront the witnesses against them2. To properly bring a claim for attempted murder heroes would have to reveal their secret identities in court. An exception to this requirement exists in certain cases where minors are the victims and the court reasons that, in the interest of protecting that minor, the identity of the victim should be concealed. While there are a few underage superheroes, it would be difficult to convince anyone that their need to protect their identity outweighs a Constitutional protection for the accused. The most a crime fighter victim could do would be to make an anonymous tip to the authorities and hope they were able to corroborate the information provided in order to bring charges against the villain without their testimony.

An interesting defense that might come up should any superheroes bring a claim for attempted murder is the theory of impossibility. It seems reasonable that if someone shoots Superman with an ordinary bullet there is no way that can be considered attempted murder because even if Superman stood in front of the bullet (as he often does) it would do absolutely no damage. Unfortunately, the law recognizes two forms of impossibility, legal and factual. Legal impossibility occurs when the act(s) committed do not constitute a crime3 whereas factual impossibility occurs when something unknown to the defendant makes the completion of the crime impossible4. Legal impossibility is generally a defense to a crime while factual impossibility generally is not a valid defense. Shooting Superman, whether or not it actually will kill him, results in a factual impossibility and his invulnerability is not a defense.

Hazardous Waste Accidents

Young Matt Murdock was walking through his neighborhood of Hells Kitchen, New York, when he narrowly avoided being hit by a truck carrying toxic waste. While the truck missed him, some of the radioactive contents spilled out and splashed into his eyes leaving him permanently blind. Matt later discovered that the chemicals changed him, heightening his other senses and giving him the ability to fight crime as the Daredevil, the man without fear.

When someone is injured through the acts or omissions of another the injured party must establish 4 elements to bring a claim: (1) a duty owed by the actor to the injured party, (2) a breach of that duty, (3) a causal link between the act or omission and the harm caused, and (4) damages. In Matt Murdock’s case the driver of the truck probably had a duty to avoid hitting a pedestrian and the company who owned the waste likely had a duty to properly secure it but the comics are unclear as to whether Matt was also at fault, possibly in the street when he shouldn’t have been, or why the waste spilled out so easily. Many companies are able to hide behind whatever the “industry standard” is for safety since the law generally only requires reasonable efforts to protect the public. If the company satisfied its burden and did what everyone else was doing to secure its waste Matt would be unable to bring an ordinary tort claim. However, when an actor is engaging in ultra-hazardous activity they are strictly liable for harm caused by their conduct. The transportation of toxic waste is one of the classic examples of ultra-hazardous activity so regardless of whether the company that owned the waste or the driver of the truck did anything wrong, Matt could bring a suit for his damages without proving any tort elements.

Work accidents

Jon Osterman was working at the Gila Flats research facility when he was trapped in an Intrinsic Field Subtractor and completely obliterated. His consciousness was later reborn as the “quantum” being Dr. Manhattan who experiences time in a non-linear fashion and who has seemingly limitless control over physical reality. Barry Allen was a police scientist working in his lab late one night when a bolt off lightning struck his lab causing him to inhale electrified chemicals. The chemicals altered his DNA, giving him super speed and leading him to become the second5 superhero to be known as the Flash.

The difference between Jon and Barry’s origin stories is that Jon can file for workers’ compensation insurance to cover his damages while Barry probably cannot. Workers’ comp. is provided by employers, or the state, to provide for the costs of work related injuries. Most insurance policies specifically disclaim injuries arising from an act of nature from being work related6 unless an employee’s job puts them at greater risk for natural disasters than members of the general public. Because there was nothing special about the Flash’s job that lead to his encounter with the bolt of lightning, he would not likely be able to collect insurance for the accident but Doctor Manhattan probably would.

School accidents

One of the more well-known origin stories is that of Spiderman as depicted in the recent movies. Peter Parker goes on a school field trip to a laboratory doing genetic research on spiders. One of the spiders gets out of its enclosure and bites Parker, imparting a part of its new DNA and turning Peter into the Amazing Spiderman.

Were Peter to attempt a lawsuit against the laboratory, possibly for negligently letting the spider get out, he would run into difficulty showing they breached their duty with regards to the spider’s enclosure. Because the standard of care in a particular industry is set by what a reasonable company would do, the standard ultimately becomes one of “what is everyone else doing?” If everyone else is doing the same thing, how can one company be singled out and punished for following suit? Changes to industry standards generally come from the legislature. For example, the industry shift toward including seat belts in cars, which were originally thought to be neither cost efficient nor effective in reducing accident injuries.

Because there are probably very few other laboratories experimenting with spiders the one in question basically gets to set the standard. The court may look to how other companies confine other genetically altered/dangerous animals but there may be enough differences for those methods not to apply. Unfortunately, Peter would also probably be precluded from bringing a negligence suit against his school because his Aunt May and Uncle Ben probably signed a permission slip, which waived all rights to bring a lawsuit. Additionally, some states actually bar lawsuits against public schools by statute for injuries that occur on field trips.

Claims against the government or military

Bruce Banner was conducting an experiment in gamma radiation when he spotted a teenager driving across the test field. He left the safety of the bunker, telling another scientist to stall the experiment, and attempted to warn the young man of the impending explosion. The scientist, jealous of Dr. Banner, neglected to tell anyone to wait and the bomb released dangerous gamma radiation that transformed banner into the Incredible Hulk.

The principle of sovereign immunity prevents the government (including the military) from being sued directly unless that immunity is waived. Additionally, the Feres Doctrine prevents suits against the U.S. government or the military for injuries that occur during active military duty. Immunity has been waived in certain situations for limited recovery when the injuries involved result in deprivations of Constitutional rights7. That waiver, however, is primarily used for civil rights violations. As horrible as the injuries to Bruce Banner were, his only real hope lies in the employment classification of the scientist who acted improperly. If that scientist were a contractor, and not a member of the military, Bruce could bring a claim directly against him for his resultant damages. Unfortunately, it is unlikely that this ordinary government scientist would be able to pay the judgment on such an incredible lawsuit.

Next week we’ll take a look at the immigration laws and regulations affecting superheroes from other planets and dimensions.


1 – Let me know if you have an example because I would love to see it/watch it!

2 – “In all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him . . . ” U.S. Const. 6th Amendment

3 – Booth v. State, 398 P.2d 863 (Okl. Cr. 1964). A man stole but was apprehended by the police. The police set up a sting operation and brought the goods to the man in custody’s potential buyer. Because the goods had been intercepted they were no longer stolen so the buyer could not be charged with receipt of stolen property.

4 – State v. Haines, 545 N.E.2d 834 (1989). The conviction of two HIV positive inmates for attempted murder who tried to transmit HIV by biting guards was upheld. Even though HIV cannot be transmitted by biting that factual impossibility was not known to the prisoners at the time of the commission of their act.

5 – The first “Flash” was Jason Garrick, a college student in the ’30s who inhaled hard water vapors in a lab giving him super speed.

6 – Texas for example: “Injuries arising out of an act of nature, unless the employment exposes the employee or volunteer to a greater risk of injury from an act of nature than ordinarily applies to the general public.”

7 – 42 U.S.C. section 1983.

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1 Comment for this entry

  • Levi Sweeney

    Wait. On the Barry Allen example, Keystone City is most often stated to be in Kansas (a twin city with Central City, which is just across the border in Missouri), but never in Texas. What does the law in Kansas have to say about the matter?

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