“Each of you bring something different to the table: strength, speed, stealth,whatever, but we’re all equal in at least one way, each of us is willing to make the sacrifices a hero needs to make, even the ultimate one . . . We can be proactive, we can do some real good in the world, but we’re gonna have to be organized. J’onn1 will be up here keeping an eye on everything, he’ll be the one deciding who goes where and when. I know a lot of you are used to making those decisions by yourself [sic], but from now on we have to be more coordinated than that. We can’t be cowboys anymore…or cowgirls.” – Superman’s address to the Justice League
Heroes love teams. Even self-proclaimed loners like Batman, Wolverine and Rorschach teamed up with a partner or joined at least one superhero team, or both (Batman & Robin and the Justice League, the X-Men and the New Fantastic Four, and the Watchmen, respectively). When crime fighters hold themselves out as part of a team what responsibility do they share for the actions of their teammates? Is there a difference between a superhero group and a hero–sidekick relationship?
Individuals who act in concert represent to third parties that their actions are approved by their partners or that their continued association ratifies the conduct. This vicarious liability can arise one of two ways: either through the formation of a partnership in which all members are equal or an employment type relationship where one hero, or group of heroes, exercises control over others.
With a partnership comes shared ownership, shared control, and shared liability. While many partnerships are the result of a contractual agreement, even loose associations of individuals who intend to enter into such a relationship qualify. Superheroes who occassionally partner up with villains to solve crimes or go after other criminals should be wary of the lack of formal requirements necessary to impose joint and several liability. We often find Batman working with Cat Woman to track down a stolen cat-themed piece of art, usually so that Cat Woman can steal it herself, or Spiderman helping out Black Cat when she comes to him with a sob story about her kidnapped father. While engaged in these partnerships these heroes are equally liable for any illegal acts committed in furtherance of the partnership purpose.
Under the theory of respondeat superior, an employer is responsible for the actions of employees that are performed within the scope of employment. To determine whether an employer is liable the first question is whether there is an actual employment relationship or whether the “employee” is actually an independent contractor. An independent contractor, with more autonomy in their actions, does not impose liability on their master. Common factors in determining whether an actor is an independent contractor include the degree of control exercised by the master; who determines the time, place, and manner the job will be performed; who provides the instrumentalities; and the level of skill required.
Sidekicks – the superhero–sidekick relationship weighs heavily in favor of the sidekick as an employee rather than an independent contractor. While an admittedly high level of skill is required to fight crime (usually a persuasive factor for a contractor), the superhero generally calls all the shots, deciding when and where to fight crime and in what manner. Batman taught Robin how to fight, provided him with his own themed equipment and allows him to operate out of the Bat Cave so long as Robin abides by Batman’s rules. Because of this, Batman is liable for any of Robin’s misdeeds committed within the scope of his employment2. Generally a master is not liable for a servant’s intentional acts, like battery, because physical altercations are not generally part of a person’s job descriptions. These activities, and others committed for the employee’s own purposes are considered frolics, deviations from the service of the master and do not impose liability on the employer. In the case of superheroes, however, fights are a known consequence of attempting to stop crime and therefore within the scope of employment3.
Teams with leaders – few superhero groups are run with equal input and control, most operate under the authority of a team leader (think Professor Xavier and the X-Men or Mr. Fantastic and the Fantastic Four) or a group of leaders (like the Justice League). In groups such as these it is much more difficult for the leader(s) to avoid vicarious liability because the control they exert over the other members works to defeat a finding of independent contractors.
The quote at the top of this post was made by Superman to the newly formed Justice League. All members of the League are equal to one another but the decisions are made by the seven founding members (Superman, J’onn the Martian Man Hunter, the Green Lantern, Batman, Wonder Woman, the Flash, and Hawk Girl). Once again, there is an admittedly high level of skill required to join the league implying that its members are independent contractors. Additionally each member provides, and maintains, their own instruments. However, as the quote implies, the logistical decisions are all made by J’onn who deploys certain members, usually in groups of 3′s, to various emergencies. Once the team arrives at the scene, a team leader (also chosen by J’onn) decides the manner in which the situation will be handled.
As the members of the Justice League are most likely employees subject to the control of the founding members, those founders share in the liability created by the actions of the League. As an added bonus, even if the members were found to be independent contractors, the founders would still be liable for acts related to a member’s involvement in the League because liability attaches to the employer of an independent contractor for inherently dangerous activities, such as fighting crime.
Over the past few years real associations of superheroes have sprung up as a surprising number of individuals decide to take the enforcement of the law into their own hands. Whether organizations such as Real Life Superheroes are a serious superhero collective or some form of entertainment, the principles of vicarious liability can have real repurcussions for the operators and organizers. From a review of most of these sites they serve only to connect existing superheroes to one another, however, as a prerequisite for admittance some groups have “Superhero Codes” and “Rules’ that members must follow. Others even provide guidelines for the types of equipment superhero members should carry. These groups should be careful to limit the amount of control they attempt to exert to avoid liability under a theory of agency.
IN THE NEXT EXCITING INSTALLMENT
Next week we’ll look at the laws affecting superhero hideouts. Everything from zoning laws to liability for defenses and booby traps.
1 – J’onn J’onnz, also known as the Martian Manhunter.
2 – Perez v. Van Groningen & Sons Inc. 41 Cal.3d 962 (1986).
3 – Mary M. v. City of Los Angeles, 54 Cal.3d 202 (1991).