This week we have a question about No Ordinary Family and reckless endangerment. As always, if you have questions or post suggestions, please send them to firstname.lastname@example.org and email@example.com or leave them in the comments.
James asks “The ABC show No Ordinary Family aired a recent episode where the character Jim, who is invulnerable, deflects a bullet which ricochets off of a number of metal objects and winds up striking a teen bystander. … Jim feels responsible for what happens to the young man, especially in that he chose to confront the man whom he knew was armed. How much responsibility would he truly bear? Does he have a duty to take this fight into a secluded area (which he did – the bystander was inside a nearby building)? Could he be charged with reckless endangerment, even though he didn’t know the boy was there, since he does seem to be showing off in front of the criminal?”
Although No Ordinary Family isn’t based on a comic book, it does feature a lot of superhero comic book tropes and—most importantly for us—it’s set in a world that shares our legal system. This particular question is also interesting because it’s the kind of collateral damage that shows up in many comics.
So is Jim guilty of anything here? Or perhaps liable in tort for the teenager’s injuries? The first question we have to ask is “what law applies?” When talking about Gotham or Metropolis there’s not always a definite answer for that, but in this case we know the show is set in a fictional town in California, so we’ll apply California law. First, the criminal law.
I. Was It a Crime?
As it turns out, like many states California does not have a general offense of reckless endangerment. California does have reckless endangerment-like laws regarding the discharge of firearms, but those don’t apply here since Jim wasn’t the one pulling the trigger. But maybe a different offense fits. Let’s consider the most generic one: simple battery, which is defined in Cal. Penal Code § 242 as “any willful and unlawful use of force or violence upon the person of another.”
As you can probably guess, the analysis here depends on what exactly “willful” means. In California, the mental state or intent required for battery is the same as for assault because an assault is simply an attempted battery. People v. Hayes, 142 Cal.App.4th 175, 180 (Cal. Ct. App. 2006). “Assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” People v. Williams, 26 Cal.4th 779, 790 (2001). Since Jim did not know that the bystander was there and since ricochets are highly unpredictable, Jim couldn’t have known that his actions would “probably and directly result in the application of physical force against another.” So we don’t think Jim committed a crime in this case.
II. Was It a Tort?
If Jim isn’t criminally liable, what about a tort suit by the victim? Here we can turn to the law of negligence. In California the elements of negligence are a legal duty of due care and a breach of that duty that is the proximate (i.e. legally responsible) cause of the resulting injury. This is also known as “duty, breach, causation, and damages.” Conroy v. Regents, 45 Cal.4th 1244, 1250 (2009). Here the damages are clear (the dude got shot), so let’s consider the first three elements.
As a general rule in California, everyone has a duty to use ordinary care to avoid injuring others. Cal. Civ. Code § 1714(a). However, this only extends to injuries that were reasonably foreseeable to the defendant at the time. Dillon v. Legg, 68 Cal.2d 728, 739 (1968). The analysis, however, is generalized to “whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” Lawson v. Safeway Inc., 191 Cal.App.4th 400, 409 (Cal. Ct. App. 2010). “Sufficiently likely” means “likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.” Friedman v. Merck & Co., 107 Cal.App.4th 454, 466 (Cal. Ct. App. 2003).
So would a reasonably thoughtful person take into account the possibility of ricocheting bullets striking an unknown person? Certainly many superheroes are concerned with the possibility of their actions harming bystanders (including bystanders that may not be readily apparent), and many go out of their way to avoid or prevent such harm. On the other hand, ricochets are unpredictable, and we’re not sure the reasonably thoughtful person would spend much time contemplating physics while getting shot at. We could see a court going either way with this, but let’s assume the court says there’s a duty here so we can continue the analysis.
In general, a duty has been breached when the defendant has displayed less than ordinary, reasonable care or prudence. See Mosley v. Arden Farms Co., 26 Cal.2d 213 (1945). So how do we judge that? California, like many states, follows the Learned Hand formula of negligence, named for the famous Judge Learned Hand. Crane v. Smith, 23 Cal.2d 288, 298-99 (1943). Basically, you multiply the likelihood of the harm by the magnitude of the harm, then compare the result to the cost of preventing the harm. If the cost to prevent the harm is less than the average cost of the harm, then not preventing it is unreasonable. In other words, spending a $1 to prevent $2 worth of harm is reasonable, but spending $2 to prevent $1 worth of harm is not. It’s a kind of reductive view of rationality, but the law is like that sometimes.
In this case it’s hard to put a number to either the harm or the cost. Instead, we can simply consider the circumstances and ask what a normal person would do if someone pointed a gun at their face. Most normal people would do exactly what Jim did: throw a hand up in a—for most people futile—effort at self-defense. And the ricochet might have occurred even if it had been an ordinary person; bullets can ricochet off of rings, watches, and even bones.
In fact, it was actually self-defense in Jim’s case, since a high-powered bullet fired at close range is capable of hurting him, so he tends to deflect bullets with his hands rather than his face. Since an ordinary person would probably have done exactly what Jim did under the circumstances, we don’t think there was a breach of duty here. There’s no negligence without a breach, and so Jim wouldn’t be liable and the analysis ends there. Thus, we don’t actually have to consider causation (although if people are interested we think there’s a sort of flimsy argument to be made there as well).
(NB: The fact that it was a lawful act of self-defense is not itself a defense to negligence. “No purpose, however benevolent, excuses negligence.” Woodhead v. Wilkinson, 181 Cal. 599, 602 (1919). What matters is that an ordinary person would have done the same thing under the circumstances.)
We don’t think Jim is criminally or civilly liable for the victim’s injury. By contrast, the attacker is at a minimum guilty of attempted murder (of Jim) and grossly negligent discharge of a weapon. He would also be liable in tort.
That’s all for this week! Keep your questions and post suggestions coming in!