Superheroes, the Duty to Rescue, and Negligence

A reader (hi Dad!) has asked about whether a superhero can be sued for not coming to the rescue. This is actually a good opportunity to talk about a few points of tort law that we haven’t covered yet. These include the concept of a duty to rescue and the standard of care in rescue situations. We’ll also talk a bit about the way the law tends to view issues of causation.

Note that we’re talking in the abstract here; specific states will interpret and apply these doctrines differently.

I. The Duty to Rescue

It’s 2:00 AM in Gotham City, and a bunch of thugs are surrounding an old man getting off the subway in a sketchy part of town. The leader is slapping a pipe in his palm. Then, with a screech of tires, the Batmobile pulls up! Batman jumps out, looks straight at the thugs, and… goes across the street to get coffee.

Huh?

Superheroes of all stripes tend to operate under the assumption that it is their duty to protect civilians and society–sometimes even reality itself–from villainy. Morally speaking, they’re probably correct. But legally, not so much. The basic assumption in tort law is that there is no duty to rescue. This is important  because a defendant cannot be held liable under any negligence theory unless the defendant breached a duty which caused cognizable harm to the plaintiff. Where there is no duty, there can be no negligence. So the fact that Batman looks the other way in the above hypothetical may make him a bad person, but it probably won’t subject him to liability.

There are, however, a few exceptions to the general rule, some of which are at least potentially applicable. First, if a defendant has himself created a hazardous condition, he has a duty to rescue those who are endangered by it. Mundane examples include construction workers digging a hole in the road or lumberjacks felling trees: both have a duty to rescue those endangered by their activities. This only makes sense. So if Spider-Man sets a web trap for the Green Goblin, he has a duty to rescue any civilians who get caught in it. More interestingly, Iron Man probably has a duty to rescue people endangered by his sentient armor. But in either case, there has to be some positive action by the superhero to create the duty, i.e. Batman didn’t put the thugs there, nor cause them to attack the old man, so this exception won’t apply to most supervillain attacks. Pissing people off is not going to count as “creating a hazardous condition,” as people are responsible for their own intentional acts unless threatened with immediate death.

Second, and this is probably the thornier issue for our heroes, there is a duty to rescue when a “special relationship” exists between plaintiff and defendant. The term has different meanings in different contexts, but what the law means by this is some relationship where one party is taking responsibility for the other in some way. Parents have a special relationship with their minor children, as do common carriers with their patrons, spouses with each other, property owners towards invitees, etc. But for our purposes, the special relationship most at issue is going to be the one between emergency response personnel and the public. Emergency responders, e.g. paramedics, firefighters, police officers, etc. have a duty to respond to and rescue those members of the public that require their assistance. Could Superman be considered an emergency responder?

Probably not. Emergency responders are only required to provide assistance within the scope of their employment. So police officers are not required to rush into burning buildings, nor are firefighters required to apprehend criminals, and neither one is required to do much of anything when they aren’t on duty. So unless Superman has some kind of official position with an emergency response agency, which would definitely make him a state actor, finding some legal duty to respond to emergencies is going to be pretty difficult.

This is not necessarily a bad result either. Superman and other superheroes are theoretically capable of responding to just about any emergency one could care to name. Certainly more than they actually do respond to. This idea is actually being explored in the ongoing Superman: Grounded story arc. If everyone who Superman could save has a cause of action against him for not doing so, Superman would never have time to save anyone.

More to the point, the legal system is generally interested more in setting the minimum bar for civilized behavior than in enforcing a standard of virtuous conduct. Many things that are morally blameworthy are not punishable by law, and this is how we want things to be. The legal system is overwhelmed enough as it is dealing with serious breaches of community life to have to deal with minor marital spats and irritating but innocuous playground insults. The law cannot make people good, but it can do something about trying to prevent them from doing evil and punishing them when they do.

II. Negligence During Rescue

There is another exception to the general rule that there is no duty to rescue: if Batman does decide to save the old man by the subway, he is responsible for acting in a reasonably prudent manner while he does it. Nevermind the fact that assailing a bunch of pipe-carrying thugs isn’t terribly reasonable to begin with: once a person steps in to rescue, they voluntarily assume that duty. That includes possessing the necessary skill and experience to effect a rescue. With Batman that’s probably a no-brainer, but a rookie superhero–or untrained civilian–who steps in to rescue someone is risking a negligence suit if, for example, the old man is injured during the rescue attempt.

That raises another related issue: is a superhero liable for trying to rescue someone and either screwing it up or just failing? Is Spider-Man liable for Gwen Stacy’s death?

The general answer is, as always, “It depends,” but the specific answer to the Gwen Stacy question is “Probably not.”

The duty to act reasonably is not a duty to guarantee a good outcome. It is merely to do what a reasonable person would do under similar circumstances. If doing what a reasonable person would have done results in a bad outcome, that’s too bad, but it doesn’t make the defendant liable for the result. Again, there must be a breach of the duty of care for there to be liability, and if the defendant has acted reasonably, there is no breach and thus no negligence.

So what about Gwen Stacy? The Green Goblin threw her off a bridge (reports are contradictory as to exactly which), and Spider-Man shoots out webs to catch her as she falls. He succeeds, but it turns out that as it isn’t the fall that kills you, it’s the sudden stop at the end, it doesn’t necessarily matter whether you hit concrete or are stopped short by a web: whiplash is bad for you. Gwen dies as a result of the whiplash caused by Spider-Man’s rescue attempt. We’ve got the Word of God on that one (see?).

But that’s just the thing: because Spider-Man did not throw Gwen off the bridge, he is not responsible for putting her in danger–not legally anyway–and because it appears that there really was nothing he (or any reasonable person) could do to save her, the fact that his rescue attempt is the immediate cause of her death is probably not going to subject him to actual liability. While it’s true that we are capable of tracing remarkably attenuated strings of causation, a concept that DC has actually explored, the law is not generally willing to do that, cutting off proximate causation with what is reasonably foreseeable at the time the act or omission occurs and when another cause intervenes. While it is probably foreseeable that Peter Parker acting as Spider-Man would put his loved ones in jeopardy, the intentional torts and crimes of others (e.g. supervillains) are viewed as superseding causes which defeat the causation element of any negligence tort for which Spider-Man/Parker could be liable.

More generally speaking, if a superhero does what a reasonable person would have done in attempting to fight a supervillain, it is going to be very difficult to find them liable for the damage they may cause while doing it. As many supervillains pose an immense risk to the persons and property of others, if a superhero uses as little force as possible to destroy or incapacitate the supervillain, causing property damage or even loss of life is probably in keeping with the standard of care. So when Doomsday is rampaging across three states headed for Metropolis, leaving a swath of destruction behind him, a reasonable person would probably do whatever it took to stop him, and a reasonable person with super powers would use them as necessary to do so. There are limitations, but these are basically the same proportionality limits that apply to everyone. Using lethal force is never a reasonable thing to do when there is no risk to a person’s life, so if the Joker threatens to vandalize a museum, killing him is both a tort and a crime. Doesn’t really matter how you kill him either: heat vision isn’t going to get treated any differently than a shotgun or Batarang. Taking a more serious step, if the Green Goblin is threatening to kill Gwen Stacy, it would be reasonable to kill him, but it would not be reasonable to bring down the entire bridge, with all the people on it. Then again, if Darkseid is threatening to destroy all of reality, it’s hard to argue that anything in the attempt to prevent that would be unreasonable.

It’s also possible that some superheroes could be subject to strict liability under a variety of theories, but that’s a discussion for another post.

III. Conclusion

The question of tort liability for superheroes declining to engage in or actually engaging in rescue attempts is interesting, but it appears that finding such liability is going to be difficult unless a superhero is either 1) an official employee of a emergency response agency, or 2) acts carelessly or with unreasonable force to eliminate the threat. In the absence of those, our heroes are safe from legal liability, even if there are unresolved moral issues.

32 Responses to Superheroes, the Duty to Rescue, and Negligence

  1. How does this overlap with my favorite Appeals court ruling, Wagner v. International Railway Co.? If Batman is a volunteer acting to help save Gotham from a negligently designed (by his father) commuter rail system, can he sue Wayne Enterprises for the damage caused to the Batmobile when it is destroyed while he is saving the city? If danger truly does invite rescue doesn’t this create civil liability not only for super-villains, but for the proprietors of all the research laboratories, power plants, chemical factories, and banks which they exploit toward their dastardly ends?

    • That’s stretching the envelope perhaps a metre too far.

      • More like a good couple of kilometers. Again, intentional acts of others are really, really easy to construe as intervening causes. It’s not impossible for a landowner to be held liable for creating a condition which leads to crime, but it’s very, very hard.

      • Not merely an intervening cause but a superseding cause, which would shift the tort liability to the person responsible for the superseding cause.

  2. It might fit generally under the duty to proceed with a rescue in a reasonable way, but another sometime exception to the “no duty to rescue” principle is that once a rescue begins, the rescuer has a duty to continue reasonably. In other words, Batman can’t begin to intervene, beat up five of the six bad guys, and then adjourn for coffee, leaving the victim to the tender mercies of the last hoodlum.

    There are several justifications for this which are advanced when the issue is discussed in legal education. One is that by beginning the rescue, the rescuer has voluntarily created a “special relationship” (q.v. above) and thereafter we will hold them to the principles we attribute to such a relationship. Another is that the victim may reasonably rely on the apparent intent of the rescuer to assist, and forbear from self-help which they might otherwise be reasonably expected to pursue. Similarly, other potential rescuers, say Batgirl swinging by on her own evening patrol, may see that Batman apparently has the situation well in hand and be discouraged from rendering assistance that they might otherwise provide. If Batman then breaks off his rescue, the victim is in a worse position than they otherwise would have been, since Batgirl might have helped had he not intervened.

  3. Does this same topic cover the Mr. Incredible suit? He performed an unwanted rescue of a suicide jumper. I can’t remember the facts of the case, but the jumper sued Mr. Incredible for either (A) preventing his suicide or (B) the injuries sustained during the rescue (or (c) both?).

  4. [I]f Darkseid is threatening to destroy all of reality, it’s hard to argue that anything in the attempt to prevent that would be unreasonable.

    The Godzilla Threshold is a wonderful thing.

  5. First, wasn’t there a case recently in…I want to say California, where the courts ruled (after a woman was murdered hours before “help” finally arrived) that police officers do not have a duty to respond?

    Second, I’d think that killing the Joker might be justifiable. I mean, if thirty-odd years of reading comic books has taught me nothing else, it’s that the Joker (or any costumed person) isn’t stealing the Mona Lisa, per se; he’s stealing it to get a sample of da Vinci’s paint, which he’ll then mass produce to poison Gotham’s water supply.

    • You may be thinking of Castle Rock v. Gonzales, 545 U.S. 748 (2005), which was more about (Colorado) state law regarding the mandatory enforcement of court orders, federal law (specifically § 1983), and the US Constitution than state tort law. But it’s worth pointing out that many state courts have held that, while there may be a duty to rescue on the part of emergency responders, that duty may only take the form of a general duty to the public to do something, not a duty owed to specific individuals to act in a particular way (and thus it may not be enforced in tort). See, e.g. Mullin v. South Bend, 639 N.E.2d 278 (Sup. Ct. Ind. 1994); Muthukumarana v. Montgomery County, 805 A. 2d 372 (Ct. App. Md. 2002). However, when an emergency responder makes assurances or takes actions that induce an individual’s reliance upon their aid, then a special relationship may be found. Id.

      As far as killing the Joker goes: deadly force is only justified when the risk of death is (or reasonably appears to be) imminent. Even if you knew for sure that the museum heist was all part of an ultimately murderous plot, if the Joker presented no immediate threat then killing him would not be justified. Absent an immediate threat, the law discourages what it calls “self-help” and encourages the use of the normal justice system.

      • One wonders if, in a comic-book universe, there might not be certain characters whose very appearance might justify the use of deadly force. For instance, if I saw the Joker, I’d shoot him. Right there, right then. Because I believe, and I believe that it is entirely reasonable to believe, that if you cansee the Joker, you are in deadly peril. His entire history (perhaps most conclusively demonstrated in the talk-show scene in Hunt the Dark Knight) proves that if he is not trying to kill you right this second it is ONLY because he plans to kill you in a few minutes.

      • “His entire history…proves that if he is not trying to kill you right this second it is ONLY because he plans to kill you in a few minutes.”

        I don’t know about that. There have been times when the Joker was less prone to outright murder or violent crime and more inclined toward simply causing chaos and disruption (consider the infamous ‘boner’ issue). So it would depend on the continuity and the circumstances. But you raise a good point, which is that some characters (at least at certain times) may be so dangerous that a reasonable person would not have to wait until the villain actually started attacking before defending himself or herself because the threat of deadly force is obvious from the villain’s murderous reputation alone.

      • TimothyAWiseman

        “may be so dangerous that a reasonable person would not have to wait until the villain actually started attacking before defending himself or herself because the threat of deadly force is obvious from the villain’s murderous reputation alone.”

        I must respectfully beg to differ. As a matter of policy, it must be remembered that people are very often misinformed and reputations are often either undeserved or greatly overstated. You need look no further than wikipedia for a list of things that most people in the general public believe but which are either utterly false or horribly exagerated. http://en.wikipedia.org/wiki/Common_misconceptions

        There are still cases where even with full due process, people are wrongfully convicted. While this is a relatively small percentage, it still happens with full safe-gaurds. Reputation has far fewer safegaurds and the media does love to play up the dramatic aspects of a story.

        There is also the possibility of mistaken identity, perhaps created intentionally by the villain himself as the Joker in The Dark Knight move tried to do towards the end by disguising the hostages.

        Thus, I think a reasonable person would be cognizant of these facts and that a court would be reluctant to let someone decide that the mere presence of a person with a certain reputation justifies the use of lethal force.

    • This is a pretty old principle in the law. The case that was used as a seminal example when I was in law school is Warren v. District of Columbia (444 A.2d. 1, D.C. Ct. of Ap. 1981.) Absolutely horrific case, right out of a slasher movie. No liability for the police department despite the fact that it could be argued they actively made things worse by promising aid and then not delivering it.

      Arguably this case shows that the police have less duty to any specific individual than private individuals, since there have been cases where private individuals were found liable for promising aid and then not following up. The real answer, though, is probably that this case means that in jurisdictions where it holds no such duty applies to private individuals either.

      • Note that the Warren case still recognized the possibility of a special relationship between the police and an individual, though it declined to extend the special relationship theory to the facts of that case.

      • If the facts in that case didn’t support extending the “special relationship” theory to the police, then I for one would argue that nothing short of physical presence + awareness and perhaps even beginning to render aid would do so. As in other cases cited we’ve seen that protective orders, naming a specific person to be protected and a specific person they are to be protected from, do not extend the relationship. In the Warren case there was awareness and a promise to render aid, which was negligently not rendered. There’s not a lot further to go from there short of physical presence + awareness.

        This is kind of a reverse slippery slope argument, so far as I’m concerned: “Well, obviously SOMETIMES the police have a duty to render aid, but not here… and not here… and not here… eventually we’ll hit it, though.”

      • “As in other cases cited we’ve seen that protective orders, naming a specific person to be protected and a specific person they are to be protected from, do not extend the relationship.”

        If you’re referring to the City of Castle Rock v. Gonzales case, it did not involve an allegation of a special relationship under state tort law, but it would not surprise me if there were state tort cases that held that a protective order did not create a special relationship.

        “I for one would argue that nothing short of physical presence + awareness and perhaps even beginning to render aid would do so.”

        And that may indeed be the case. Some of the police cases explain the special relationship as nothing more than an application of the rule that one who begins to render aid must do so with reasonable care.

  6. How do you reconcile the official employee of an emergency response with the Bat signal? Surely a signal on top of a police department must be considered an extension of that department, even though Batman is not an official employee. There’s no other reason for the police to have the signal but for Batman to come an respond to a major emergency Gotham City is facing.

    • And in fact we’ve considered whether Batman is a state actor, and the Bat Signal definitely plays a role there. Our conclusion was that Batman would probably be a state actor in the real world, but the DC universe probably has a weaker version of the doctrine so as to allow superheroes to work more closely with the police.

      Here, though, simply asking for a private citizen's help, even on a regular basis, is probably insufficient to make them an emergency responder. Batman is, after all, under no particular obligation to respond to the call, nor does Gotham have any particular leverage to induce him to do so (e.g. it can't fire him or take away a license). And even if he were such a responder, tort liability would only exist when specific assurances were made to a person in danger that Batman would be responding in a particular way and the endangered person would have to rely on those assurances, foregoing other aid or rescue. It seems unlikely that, for example, a Gotham 911 responder would tell someone “stay calm, Batman is on his way right now.” Further, even if a person in danger saw the Bat Signal, that doesn’t mean it was lit up for them.

  7. Re: Batman as state actor:
    Actually, him being a state actor fits pretty well, at least with the comics I remember.
    Most of the supervillians that Batman fights don’t go to jail, they get committed to an asylum for the criminally insane, so questions of warrantless searches and such are less of a concern. Since the bad guys never see trial, nobody cares if the evidence is admissible.
    When Batman is facing small-time thugs, …. well, it’s a trade-off. “Today’s your lucky day, Vinnie: your rights are about to be violated by a state actor, so they’ll never be able to convict you for robbing that liquor store. Instead, you are going to get beaten senseless by Batman as a warning to others that if you do crime around here, sometimes something worse than getting arrested happens to you. Don’t you feel lucky?”

    • That may not be as great as outcome as you might think. Involuntary commitment still requires evidence, so admissibility is a concern. In fact it usually requires clear and convincing evidence, which is almost as high a standard as beyond a reasonable doubt.

      And what’s more, getting beaten senseless by a state actor is a good way to get the state actor and likely Gotham City on the hook for a § 1983 claim. Batman’s generally positive working relationship with the police would fall apart pretty quickly after a couple of those.

      Determining whether someone is a state actor is very fact-specific with relatively few clear rules, and even those rules are very nearly contradictory. As Justice O’Conner said, the state action cases “have not been a model of consistency.” Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 632 (1991) (O’Conner, J., dissenting). I think the courts in the DC Universe decided after “sifting the facts and weighing the circumstances” that Batman is not a state actor, either because the doctrine is weaker in the DCU or simply because the extremely flexible (some would say confused) state actor doctrine let the courts make an exception for superheroes like Batman. On the whole that’s probably a good thing.

      • Chakat Firepaw

        That may not be as great as outcome as you might think. Involuntary commitment still requires evidence, so admissibility is a concern. In fact it usually requires clear and convincing evidence, which is almost as high a standard as beyond a reasonable doubt.

        Then again, most of the people in question have long since had the determination that they need to be involuntary committed, it’s just that they’ve escaped, (again).

        This may be a thing that helps superheroes in many settings/jurisdictions: The supervillains have enough convictions stacked up to be spending the rest of their lives in jail anyway. Thus, it doesn’t really matter if the evidence for this case is no good as they can simply be apprehended as a fugitive.

  8. I’m a little fuzzy on the details, as it’s been a while, but in the series finale of Seinfeld, the gang is arrested for failing to act during a mugging. Again I’m fuzzy on the details, but I think the issues was that they failed to do anything at all (i.e. they could have at least called the police instead of just standing and watching it). How does this concept fit with everything else that has been discussed?
    Assuming that I’m remembering the episode correctly, it would seem that Batman could be prosecuted for failing to act at all (suggesting that if he called 911 he’d be ok, but if he simply ignored it, he’d be culpable).

    • This came up in the comments on the first Law and the Multiverse Mailbag. I’ll quote my response from that thread:

      In Seinfeld there was a new statute that imposed a duty to rescue. Assuming such a statute were constitutional (witness the current dispute over the affirmative mandate in the health care reform bill), then they were probably guilty of violating it. But note that the Seinfeld writers had to invent a statute for plot purposes.

    • The common law doctrine is that there is no duty to rescue. But states are entirely free to deviate from the common law by legislation. For example, the common law rule in negligence cases is that if the plaintiff is even 1% at fault, he cannot recover. This was widely regarded as unjust, and most states have adopted, by statute, a system of comparative fault, where plaintiffs recover in proportion to the defendant’s negligence.

      Similarly, some states have deviated from the common law in passing statutes which impose a duty to assist in emergencies. These are pretty uncommon, but where they exist they can be enforced. But this is a minority position, so the thrust of the post sticks with the common law formulation.

  9. It is very possible that batman, when faced with a civil suite for neglecting to perform CPR while in the position of guardian ad litem to another Superhero’s child in such an emergency, may go a little wild purchasing lots of extra batmobiles prior to filing bankruptcy in an attempt to avoid the suit he faces. In such a case the other Superhero could probably alert the trustee to potential bankruptcy fraud. It’s a good thing we are not talking about real people here! The “super hero” above may not be fond of superheros that respond so unremorsefully to real death. Perhaps an opportunity for batman to “repent” in such a situation should be on his mind more than “avoid”. Even in a comic-courtroom, defendants can’t avoid the wrath of their creator.

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