Crime takes place all around us. Those who step up to do something about it are considered heroes, but what about the rest of us? What duty does the average citizen (or the average superhero for that matter) have to protect those around them? And for those who choose to don the mantle of a crime fighter, what effect does dispensing their own brand of justice have on the rest of their lives?
Few situations in the law require an affirmative duty to act; criminal law and the law of torts are much more concerned with punishing wrongful acts (malfeasance) than punishing omissions to act (nonfeasance). With a few exceptions discussed below, if you come across someone in danger, no matter how much they plead with you, you are under no obligation to help them or even find someone else willing to help.
Certain special relationships give rise to a duty to act: employer–employee, school–student, common carrier–passenger. In these relationships one party is being given a measure of control in exchange for some measure of protection. A few superheroes actually fall into these categories, The Green Arrow and Batman are both billionaire industrialists employing thousands of people, and Professor Xavier runs a school for “gifted” students. Most of us, however, do not have a similar duty to rescue.
Creating the Peril
While you are under no duty to act in a situation where you are uninvolved, if someone is in danger because of your actions you owe them a duty to make reasonable rescue efforts. This exception leads to another situation where superheroes are unable to pick and choose whom they rescue. As heroes are chasing criminals, for example in the Batmobile barreling down the road, they owe a duty to everyone their actions of swerving, speeding,and running red lights endanger1. As most people do not regularly engage in such reckless behavior, ordinary citizens rarely create a peril leading to such a duty. Superheroes, however, cause a lot of collateral damage and may leave a wake of liability in their paths to justice.
Undertaking a Rescue/Reliance
Gratuitous offers to render assistance generally give rise to a duty to act. For the average person a promise to help someone in need creates a duty to act reasonably. The rationale for this obligation is that if a third-party were to overhear the offer to help or to get help they may be dissuaded from offering their own assistance. If the generous promisor doesn’t end up helping or getting help then the person in danger is actually in a worse situation than before the promise (this situation begins to tip in favor of malfeasance rather than nonfeasance and so the law imposes a duty). For a superhero this exception means that once a rescue is started it must be completed reasonably, at least leaving the victim no worse off than when the rescue began.
Duty to Control/Protect
Similar to the special relationship analysis, a person does not typically have a duty to control the conduct of another or to take steps to protect another from harm. However, when someone is in a situation of control and they have knowledge of a need to protect there exists such a duty. This exception arises most frequently in the context of superheroes after an arrest is made; if a hero takes custody of a dangerous person and negligently allows them to escape they owe a duty to anyone put at risk to make a reasonable effort to rescue.
Public Duty Doctrine
Under the public duty doctrine a government actor acting improperly is still not liable to specific individuals harmed by their misperformance because any duty owed by these actors is owed to the public at large and not any particular individual.
To sum up the duty to rescue lets borrow an example from the first Spiderman movie. The scene often repeated in flashbacks in the comics and throughout the movie series is the one where Spiderman lets a criminal run past him after the wrestling match because he is upset with the manager who refused to pay him what he believed he was owed. When the manager asks why he didn’t do anything to help Spiderman says “not my problem.” The criminal later goes on to kill Spiderman’s uncle and the whole scene is the impetus for Spiderman’s choice to fight crime, but the statement is correct, it was not his problem. There was no special relationship between Spidey and the fight promoter and the robbery occurred through no fault of Spiderman or Peter Parker2
Once someone has made the choice to cross-over from ordinary citizen to crime fighter they must reconcile their calling with their chosen profession. Most heroes have secret identities and work normal jobs when they aren’t patrolling the city for evil-doers. They keep their dual identities separate not only to protect their loved ones but, in many situations, to avoid professional liability as well
It seems that many superheroes pick a day job that keeps them in touch with the criminal element as well as current events. The Daredevil, She-Hulk and the Huntress all chose the legal profession and all three are in danger of ethical violations for their crime-fighting activities. Not only are lawyers prohibited from using confidential information in a way that is contrary to their clients’ interests (a bad habit of Daredevil’s), they are charged with a duty to uphold the “decorum of the profession.” As poorly as lawyers are viewed by many, dressing up in costumes and attacking criminals with billy clubs, gamma radiated fists, and crossbows isn’t going to help.
Sworn to uphold the Hippocratic Oath doctors must “do no harm.” The medical community would certainly look unfavorably on the activities of Dr. Jean Grey, Dr. Hank McCoy (Beast), and Doctor Mid-Nite as they engage in vigilante activities and use physical force to subdue villains and extract information. One line of the doctors’ oath, however, “I will apply dietic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice” suggests that while doctors must strive to prevent harm to others they are also charged with a duty to protect the sick. It seems very curious that the oath would include a duty to protect from injustice as that seems to have very little to do with being a doctor but these heroes might argue to an ethics committee that they were merely doing their part to comply with the letter of the oath.
The Society of Professional Journalists establishes a set of guidelines that journalists like Superman and Spiderman are encouraged to follow. Two provisions I find particularly interesting in the context of superheroes are:
Avoid undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public. Use of such methods should be explained as part of the story.
Avoid conflicts of interest, real or perceived.
I have yet to read a comic where Clark Kent’s story included a discussion of how he used super hearing or x-ray vision to gain sensitive information or where Spiderman rationalized how the subject of his pictures trying to kill him didn’t lead to a conflict of interest3.
IN THE NEXT EXCITING INSTALLMENT
Next week we’ll discuss superheroes and their vehicles: the laws of registration, operation, and entrustment to minors.
1 – Hardy v. Brooks, 103 Ga.App. 124, 118 S.E.2d 492 (1961)
2 – Several states have enacted “good Samaritan” laws calling on citizens to render reasonable assistance to fellow citizens in need. In these jurisdictions, however, there is generally a safe-harbor provision protecting rescuers from liability should their rescue result in increased harm or danger.
3 – Another provision requires:
Never distort the content of news photos or video. Image enhancement for technical clarity is always permissible. Label montages and photo illustrations.
In light of the post about Spiderman’s potential liability for false light. Peter Parker may also find this section of professional concern.