“Mindy, no more homework, Babydoll. Time for Frank D’Amico to go bye-bye.
- Big Daddy to Hit Girl, Kick-Ass, 2010.
Comics and T.V. shows are filled with depictions of superhero minors. This is probably partially to appeal to a key demographic, and partially to add drama with characters dealing with balancing crime-fighting with homework, dating, and acne. This portrayal is so popular that many story-lines have been retconned1 to flesh out underage back-stories2. Essentially the genre of superhero minors breaks down into two categories: (1) Superhero Minor Protagonists who act on their own, such as the early adventures of Spider-Man and Impulse, and (2) Superhero Minor Sidekicks who work with an older superhero mentor, such as Robin and Speedy. This distinction also comes with legal significance with superhero minor protagonists liable for their own actions (but also possibly subjecting their parents or guardians to liability as well), and superhero minor sidekicks acting under the control and guidance of their mentors.
Superhero Minor Protagonists
At common law, minors were not considered to be capable of having the requisite intent to commit many crimes and intentional torts, and were similarly held to a lower standard for negligence-type torts. The rationale for this disparate treatment of children was that without a sufficient understanding of their actions, and the consequences, they could not be considered to have made a full and conscious decision regarding their actions, and, because they lacked life experience, they could not fully understand how to act properly to avoid dangerous consequences.
While the age of majority currently varies from state to state, some states have enacted statutes to hold minors to adult standards well below the age of majority, where certain enumerated laws are broken3. While a minor is usually held to the standard of care of a reasonable child of a similar age and capability, minors will be held to an adult standard where they engage in an “adult activity.” The reason for exacting a higher standard of care is related to the specialized skill required to engage in such activities and the danger that is imposed on the public.
In light of these rules and standards, it is not a difficult stretch to imagine all superhero minors being treated as adults with full responsibility for their actions. These heroes are regularly engaged in combative behavior that does, on occasion, lead to serious bodily injury or death, and an argument could be made that all crime-fighting activity constitutes “adult activity.” Clearly it takes a minor of unusual characteristics, and ability, to decide to take the law into his/her own hands, whether or not that vigilante activity includes the use of complicated gadgets and machinery.
Superhero Minor Sidekicks
Everyone is familiar with Batman’s sidekick Robin, but in my opinion, many of the X-Men (juveniles sent to Xavier’s School for Gifted Youngsters by their unwitting parents — See below for a brief treatment of Professor Xavier’s own liability for tricking parents into sending their children to his school4.) also fall into this category with Xavier, and his “professors” acting as the mentors of the children.
Adults who encourage minors, Superhero Minors included, to engage in dangerous and/or illegal behavior, ranging from skipping school to playing with volatile explosives, will likely run afoul state contributing to the delinquency of minors statutes5.
Superhero Parental Liability
At common law there was very little liability imposed on parents for the acts, or omissions, of their children. Because children themselves were not generally liable for their actions, any damages that were caused were simply written off (hence, “boys will be boys”). Under modern law, however, there is contingency of statutes that create what is known as “parental liability,” wherein parents are vicariously liable for certain acts of their children committed under specific circumstances.
- Negligent Supervision – Under a number of state statutes, if a parent is determined to have exercised negligent supervision over their children, they may be held liable for the effects of their child’s actions.
- Family Car Doctrine – Under this theory of liability, a parent is liable for any damage caused by the use of the family car by a family member if the parent was aware that the child was using said vehicle.
- Court Costs and Restitution – For certain criminal acts, a parent may be responsible for reimbursing the State for court costs and/or for paying restitution to the victim(s).
- Child Access Protection Laws – A number of states have “child access” laws relating to use or access to firearms and other deadly weapons. Under these laws, parents can be liable for simply allowing their child to have access to weapons, let alone, directly handing them over.
Consider Robin and Hit-Girl, who are Superhero Minor Sidekicks to their guardian and father, respectively. Both are given direct access by their guardian to various dangerous and deadly weapons (Hit-Girl is given a myriad of guns and knives, and while Batman and Robin don’t use guns, they have a number of incendiary devices, blades, billy clubs, and other regulated weaponry), both are given access to the “family” vehicle (both without a license) and it is no stretch to argue that training, encouraging, and accompanying a juvenile vigilante, would constitute “negligent supervision.” As such, both Batman and Big Daddy would certainly be liable for any damage caused by their ward-sidekicks.
- Curfew laws – 45.04 (a) LAMC “Daytime Curfew” It is unlawful for any minor under the age of 18, who is subject to compulsory education . . . to be present in or upon the public streets . . . during the hours of the day when . . . school . . . is in session. 45.03 (a) LAMC “Nighttime Curfew” Curfew laws restrict the rights of juveniles to be outdoors or in public places between the hours of 10:00 pm and sunrise.
- Furnishing a deadly weapon to a minor – Providing a minor with access to a deadly weapon is generally a misdemeanor, however, certain enumerated weapons can result in a felony charge. Weapons that are likely to lead to a conviction, and which are popular among superheros, include guns, explosive devices, and brass knuckles6.
- Driving/Flying without a license – California Vehicle Code 12500 a vc prohibits people from driving in California without a valid driver’s license subject to a misdemeanor conviction.
Considering all the potential pitfalls for liability relating to Superhero Minors, crime-fighting teams and superhero parents would do well to consider the following waiver:
PARENTAL WAIVER AND RELEASE
As the parent or legal guardian of the child named below, I hereby give my full consent and approval for my child to participate as a team member of The Justice League.
I understand that there are certain risks of injury inherent in fighting crime and I am willing to assume these risks on behalf of my child. I hereby certify that my child is fully capable of participating in The Justice League and that my child is healthy and has no physical or mental disabilities or infirmities (other than a mutation that has lead to super-powered abilities) that would restrict full participation in these activities.
I hereby agree to inform the Justice League immediately upon the discovery of any significant weakness or limitation of my child’s powers.
In addition to giving my full consent for my child’s participation, I do herby waive release and hold harmless The Justice League, it’s officers, sponsors supervisors and representatives for any injury that may be suffered by my child in the normal course of fighting crime, and the activities incidental thereto, whether the result of negligence or any other cause.
If my child is lost in another dimension or transported to another plane of existence I hereby agree to take whatever reasonable steps requested of me by the Justice League to return my child to his/her normal state of existence.
_______ _________________________ _________________________
(Name of Child) (Date of Birth)
________________________________ _______________ _______
(Street Address) (Town) (State)
Please list any physical limitation (allergies, weakness, aversion to kryptonite, etc):
1 – Retconned – A “retcon” or “retroactive continuity” is a situation where the previous facts in a story-line are rewritten in a later literary work.
2 – See Superboy, Justice League Unlimited, ….. — think Muppet Babies with superpowers!
3 – California Proposition 21 – A minor 14 years of age or older will be tried as an adult where he/she has committed First Degree Murder, Rape, or one of another listed sexual offenses.
4 – Professor Xavier travels the country identifying young mutants with the assistance of his brainwave-amplifying machine, Cerebro. Once he has identified a new mutant, Xavier approaches them, and their parents, about enrolling in his school. Many, if not most, of the parents who are approached are apprehensive about encouraging their children’s mutations but are drawn to the idea of sending their child off to a secluded school to avoid detection. What we rarely see, however, is Xavier giving full disclosure about his plan to train the children for the purpose of fighting for mutant equal rights.
Under California Penal Code Section 272 (and similar statutes in other states), it is unlawful for “[a]n adult stranger who is 21 years or older, who knowingly contacts or communicates with a minor who is under 14 years of age, for the purpose of persuading and luring, or transporting, or attempting to persuade and lure, or transport, that minor away from the minor’s home . . . for any purpose, without the express consent of the minor’s parent or legal guardian, and with the intent to avoid the consent of the minor’s parent or legal guardian, is guilty of an infraction or a misdemeanor . . .” Because Xavier is not giving parents all the information about his school, they are incapable of giving true “express consent.”
5 – California Penal Code Section 272
6 – 2010 Arkansas Code 5-73-109
Halloween is the one day that superheroes can walk around in costume without drawing extra attention. Some heroes have even participated in Halloween activities dressed as their alter-ego, my favorite of which is Peter Parker “dressing up” as Spiderman and going to a school carnival only to have the jocks call him “puny Parker” and say that he’s too small to be a crime fighter.
“No one is above the law…and now this principle will be the driving force of my presidency.” – Lex Luther
On Tuesday, September 29, 2009, DC Universe released “Superman/Batman: Public Enemies,” a title that immediately got my attention. Overall I recommend the movie to anyone who is a fan of cartoons of either character, especially if you like the Justice League Unlimited series. The basic premise is that Lex Luther is elected President of the United States and he reaches out to his former adversaries, the superheroes of the world, to unite under his authority for the good of our country. Superman and Batman refuse his invitation and continue to fight crime on their own. Meanwhile, in space, a giant meteor made of kryptonite approaches the planet and threatens to kill most of the population.
“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.
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?