Superpowered Minors, Part Three

In prior installments of this series, we looked at criminal and contract liability for minors.  Today we look at minors and torts.  The rules here are fairly straightforward, but there are different rules for each theory of liability (e.g. intentional misconduct, negligence).

Although many torts resemble crimes, they are still civil wrongs.  Thus, the aim of tort law is to compensate the plaintiff rather than to punish the defendant, except in egregious cases.  This is why, as we shall see, minors–even very young ones–tend to be more liable for torts than they are for crimes.  It may do no good to punish a five year old for a crime, since the child may not understand the crime or the punishment, but if there has been an injury then it is only just and fair to compensate the victim.  That’s the theory, anyway.

I. Intentional Misconduct

Intentional torts are things like assault, battery, false imprisonment, trespass, conversion, and so forth.  A common element running through all of them is that the tortfeasor (i.e. the person who committed the tort) must have intended to commit the tort.  Intent can mean acting purposefully or it can mean acting with knowledge to a substantial certainty that the tort would result.  Note that this does not mean that one has to intend an injury.  As you can see from the list of examples, this is the kind of thing that superheroes and supervillains alike may frequently be accused of.

The classic example is battery.  Common law battery is defined as intentionally causing a harmful or offensive contact with the person of another or with an object closely associated with the person (e.g. something they are carrying).

The general rule for minors is that minors are liable for their intentional torts if they in fact intended the wrongful action or had knowledge to a substantial certainty that the wrongful action would result.  Except inasmuch as it may defeat an allegation that the defendant had intent or knowledge, the defendant’s age does not matter.  Garratt v. Dailey, 279 P.2d 1091, 1094 (Sup. Ct. Wash. 1955).  This approach continues today.  Recently a New York court ruled that an intentional tort suit against a four year old could proceed (NB the court did not rule that the child was liable, just that such a child could be liable).

This may seem like a harsh rule, but remember that the goal of tort law is to compensate the victim, not to punish the defendant.

II. Negligence

As the seriousness of the misconduct lessens, so does the rule of liability for minors.  Negligence is generally defined as breaching a duty of reasonable care owed to the plaintiff, thus causing an injury to the plaintiff.  Certainly one could go into a great deal more detail, but here we’re really only interested in the duty of care, since that’s the part that really varies with age.

A. The General Rule

For adults, the duty of reasonable care is generally measured thusly: given the likelihood of the injury and the severity of the injury, would taking steps to avoid the injury have been cheaper?  The theory is that a reasonable (or rational person) can only be expected to take the cheaper route, so if it’s cheaper, on average, to avoid the problem, then that’s what the law requires.  But this presumes an ordinary adult’s understanding of the likelihood of the injury, its severity, and what steps could be taken to avoid it.  What if the defendant is a child?

The general rule is that “a child’s negligence is to be determined by a standard of care which is based upon an individualized assessment of the child’s age, intelligence, maturity, and other factors relevant to the conduct involved.”  Moffitt v. Carroll, 640 A.2d 169, 174 (Sup. Ct. Del. 1994).  So a very young superpowered individual would be granted a great deal more leeway when it comes to alleged negligence, though enhanced intelligence would weigh against them.  Familiarity with one’s superpowers (or lack thereof) would probably count as another ‘factor relevant to the conduct involved.’

It should be noted that some jurisdictions presume very young children (typically age seven or younger) to be incapable of negligence.  See, e.g., Jorgensen v. Nudelman, 195 N.E.2d 422 (App. Ct. Ill. 1963).  That may be relevant for a superpowered child causing accidental damage, but there are very few superheroes or supervillains that young.

B. The Big Exception

There is a significant exception to this general rule, however, and that is when children undertake adult activities, such as driving a car on public roads.  Whether a given activity is an adult activity is determined on a case-by-case basis, but the usual factors are whether it’s an activity normally undertaken only by adults and whether adult qualifications are required.  Restatement (Second) of Torts § 283A comment c (1965).  Some courts also consider whether the activity is dangerous or hazardous to others.  See, e.g., Goss v. Allen, 360 A.2d 388, 390 (Sup. Ct. N.J. 1976).

It’s probable that a court would hold that fighting crime is an adult activity.  Although it’s sometimes undertaken by children, it is a dangerous activity and hazardous to others by its nature.  Thus, underaged superheroes may find themselves judged as adults if they negligently injure bystanders or harm property during a fight.

III. So Who Pays For All This, Anyway?

With all these ways that a child can be held liable in tort, one wonders what the point is, exactly.  After all, most children have little in the way of assets, yet they are capable of causing significant damage to people and property.  The answer is twofold: insurance and parents.  In the case of young superheroes and supervillains, however, neither of those are likely to apply.  The problems of insuring against the damage caused by superheroes and supervillains has been discussed here before, and insuring a superhero–especially an underage one–against negligence in the course of duty would likely be prohibitively expensive.  As for parents, well, most young superheroes seem to be orphans or runaways.  The exceptions either hide their superhero identity from their parents (which likely defeats parental liability) or have superheroes for parents.  As a result, plaintiffs may not have anyone with deep pockets to go after.

IV. Conclusion

Although young superheroes and supervillains may be theoretically liable for their intentional torts and may be treated as adults for their negligence, it’s unlikely to present a problem in practice.  Without assets of their own, applicable insurance, or an available parent to lean on, most young superpowered individuals are probably judgment proof.

11 responses to “Superpowered Minors, Part Three

  1. Aren’t parents not vicariously liable for their children with regard to torts anyway? So even supposing you had a young superhero whose parents were wealthy (say, an alternate continuity when young Bruce Wayne’s parents were alive and he was “Batboy” or something), the worst thing that could happen would be you would get a judgment against the minor and he’d have to start out his financial life with a bankruptcy. Not good, but not that bad in the big scheme of things. You might be able to get the parents on something like negligent entrustment if they did something to enable his superheroics, like giving them money they know or should know would be used to build a Batmobile or something. Although if you could get a judgment that Jonathan and Martha Kent for negligent entrustment, or in some other way get them to be found liable (I can’t think of anything right now), they could probably get enough money from the sale of their farmland to pay for a judgment. I’m sure there’s a developer who wants to turn Smallville into a Metropolis suburb

  2. The liability of parents for the tortious acts of their children is something we’ll cover in a future post, but suffice to say that it’s not a universal rule, and some of the exceptions may well apply to superheroes and supervillains whose parents are still around.

  3. Another couple of considerations for the question “is being a superhero an adult activity?” might be:

    What kind of crime is being fought? (e.g. Finding out who’s been stealing bicycles vs. a heist targeting a dozen banks).

    Did the kid go out looking for crime? Going on patrol seems more likely to be adult activity than simply reacting when they and a robber happen to pick the same KFC for lunch and a robbery. (More likely than you might think, given that the second most common superpower seems to be the ability to simply stumble into crimes in progress.)

  4. As a future “superpowered minors” article, might it be possible to re-examine secret identities with a focus on minors? For instance, might Captain Marvel be somehow granted greater leeway with his rights to protect his identity due to his minor status? He might have a hard time claiming it, given his adult appearance as a hero.

    If we hypothesize a kid of about 9 with a generic “flying brick” suite of powers, who flies around in a cape and mask, would he have a stronger claim to the right to keep his identity secret than an adult hero? He has much more to lose, and likely has parents who do NOT know of his superheroic activities, and could endanger other children should his identity be revealed (by much the same logic that any of Bruce Wayne’s frequent paramours would be in greater danger if Batman’s identity were known), would this grant extended protections in terms of ability to testify, act as an agent of the law (or act as a vigilante without official sanction while avoiding prosecution)?

  5. What about Franklin Richards, the son of Reed and Sue Richards of the Fantastic Four? He’s a mutant with extremely powerful abilities (though they’re usually “locked” away), his powers are known to his parents, and his parents are extremely wealthy (somehow, even though Reed Richards never seems to market his super-advanced inventions for general use, except for selling unstable-molecule costumes to other heroes). So the issues in this thread might be more applicable to him than to a lot of other young heroes.

  6. “The exceptions either hide their superhero identity from their parents (which likely defeats parental liability)”

    I thought parents were always responsible for crimes committed by their children, regardless of their knowledge; due to things like their obligation to keep them under appropriate supervision and teach them to be good citizens etc…

    • Parents are clearly not responsible for their children’s crimes, otherwise no kid would ever get sent to juvie – thier parents would go to jail instead. As for the torts, it varies based on a number of factors (child’s age, intelligence, maturity, etc, like everything else) but for the most part, it is still the child who is held liable. The parents, though, as the sole (or overwhelmingly primary) source of financial support for the child are compelled to pay the judgment. But it affects the child’s credit rating and follows them, and not the parents, once the child turns 18.

      • Was it always like this?

        How do you expect things would change in the real world if that was how the law was?

  7. Pingback: The Uniques II: Judicial Trusts and Minors | Law and the Multiverse

  8. At the end of I. Intentional Misconduct, you wrote:

    “This may seem like a harsh rule, but remember that the goal of tort law is to compensate the victim, not to punish the plaintiff.”

    Did you mean plaintiff? Shouldn’t that be defendant?

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