She-Hulk # 2

We looked at She-Hulk # 1 last week. Moving on to issue # 2, She-Hulk is plaintiff’s counsel for Dan “Danger-Man” Jermain, given atomic powers as part of an industrial accident. Mr. Jermain wants to sue his former employer for “bodily injury,” despite the fact that the only effects seem to be that he is “larger, stronger, and more powerful.” Okay, he’s also capable of causing small nuclear explosions, but hey, it’s not like it’s going to hurt him any. Defense counsel points out the fact that one needs to stretch the definition of bodily injury way past the bounds of credulity to include imbuing someone with superpowers. She-Hulk thinks she can get around it by arguing that “Danger-Man” and “Dan Jermain” are actually two separate entities, and that the latter ceased to exist when the former came into being. When asked “Do you really think this will work?” she responds “I think I can sell it to a jury.”

There are a number of problems here, so let’s take a look.

I. Workers Compensation

First, whatever happened to workers’ compensation? The rise of the Industrial Era was accompanied by the rise of workplace injuries, as people started working around machines more often, sometimes incredibly dangerous ones. In the nineteenth and early twentieth centuries, it was commonplace for factory workers to lose fingers, even limbs, to exposed machinery. Legal reforms favoring labor began in the late nineteenth century, and by 1949, every state and the federal government had instituted a workers’ compensation regime.

Workers’ compensation operates by creating a system for compensating workers for workplace injuries regardless of fault. What this means is that if you are injured while serving your employer, you get paid the vast majority of the time, even if your employer was completely without fault. This may seem very favorable to the workers, so to even things out, i.e. to make sure that employers weren’t bankrupted every time someone broke an arm, compensation was limited in three ways.

First, compensation for injuries is computed based on actuarial tables created by state agencies rather than by juries. This rationalizes and limits compensation. Whereas a jury can award a basically arbitrary amount of money, workers’ compensation payouts are known ahead of time and are thus a lot easier to plan for and insure. Second, compensation is limited to purely economic damages, i.e. medical bills, lost wages, lost future earnings, etc. There is very little provision for non-economic damages like “pain and suffering,” which really drive up verdicts in liability cases. Third, workers’ compensation is an exclusive remedy, i.e. employees cannot choose to forgo participation in the workers’ compensation program and sue their employers. Workers’ compensation is their only way to recover. So employees benefit because they almost always get paid, even if the accident was their fault, and they usually get paid in a fraction of the amount of time they’d have to wait if they sued. But employers benefit because their costs are controlled and employees can’t turn around and sue them. Workers’ compensation coverage is mandatory in just about every state for just about every employee. There are, of course, certain exceptions, but a worker in an industrial plant working with radioactive materials, e.g. Dan Jermain, would definitely be covered.

So what happened to Roxxon’s workers’ compensation carrier? How is Jermain able to sue at all? Sure, GLK&H might act as plaintiff’s counsel in the workers’ compensation case (coverage can be disputed, leading to litigation, but this is much simpler than suing in open court), but workers’ compensation is largely limited to economic damages. Danger-Man is basically uninjured, and even if we want to go with She-Hulk’s argument and say that Dan Jermain is “dead,” (more on that in a minute), workers’ compensation only pays out a couple of hundred grand—at best—for wrongful death. Not $85 million, which is the settlement reached at the end of the issue.

Of course, the whole issue goes away if Jermain wasn’t an employee. If the writers had him be some random schmo who happened to get in a wreck with a Roxxon tanker truck, covering him in radioactive goo, he would not be covered by the workers’ compensation regime and thus would be free to sue like he does in the comic. Oh well.

II. Questions of Law v. Questions of Fact

Now we’re going to get really nit-picky. She-Hulk says that she thinks she can “sell” Dan Jermain’s death to a jury. Unfortunately, whether or not “Dan Jermain” legally died during the accident is probably not a question of fact. Nor is whether giving someone superpowers counts as “bodily injury”. These would be questions of law. The difference is, in part, who gets to answer such questions and the basis for answering them.

Questions of fact are answered by the finder of fact, generally the jury, though judges are the finders of fact in bench trials. Questions of fact are answered on the basis of the evidence. The questions of fact here would be things like “What are the nature and extent of Dan Jermain’s injuries?” “What caused those injuries?” “Did Roxxon’s negligence lead to Jermain’s injuries?” “Did Jermain’s?” She-Hulk would try to get these questions answered in her favor by investigating the scene of the accident, having experts evaluate Jermain’s condition, deposing witnesses, etc.

Questions of law are answered by the judge on the basis of the law alone. The questions of law here include “Do Jermain’s symptoms constitute ‘bodily injury’ under the law?” “Is ‘Danger-Man’ legally the same entity as Dan Jermain?” “Is Dan Jermain legally dead?” These questions would be answered by looking at existing legal precedent to see what it says about the definitions of “bodily injury” and “death,” and seeing if the facts, when interpreted in the light most favorable to Roxxon, can be made to fit the legal definitions she needs.

Here we’ve got some problems. “Bodily injury” is generally understood to be a bad thing. Federal law defines it as

(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain;
(C) illness;
(D) impairment of the function of a bodily member, organ, or mental faculty; or
(E) any other injury to the body, no matter how temporary.

18 U.S.C. § 1365(h)(4)

Whether or not Danger-Man’s condition counts as any of those is going to be a question of law for the court. And it’s not entirely clear that it does. He hasn’t been cut, abraded, bruised, burned, or disfigured, at least not in any way shown in the comics. He doesn’t appear to be in any pain, nor to have experienced any as part of the process. Superpowers probably don’t constitute an “illness,” though there may be something there, especially if the powers can’t be controlled. He does not appear to be suffering any impairment of his bodily functions or mental faculties. And calling superpowers “injuries,” when they don’t fit into any of the other definitions, is a stretch, to say the least. Given that Jermain can do just about everything he could before the accident, and can do a lot more now, this is going to be a tough sell.

Though there is another claim that the authors seem to have forgotten: loss of consortium. This is a claim for loss of the affection and companionship of a family member, typically a spouse, and typically a particular kind of companionship, if you catch our meaning. Jermain seems to have been affected in a substantial way, here. Even sharing a bed with his wife is physically dangerous for her. That’s the kind of change in a relationship that a jury might well be willing to award damages for.

III: Conclusion

There was more legal meat in this one. Missing the difference between questions of law and questions of fact is understandable, though. That one even trips up experienced attorneys from time to time, as the two can blend into each other pretty easily (so-called ‘mixed questions of law and fact’). So we’ll give them a pass on that one. But missing the workers’ compensation angle was a pretty big mistake. Even most laymen are at least aware of workers’ compensation, even if they aren’t entirely aware of how it works.  Maybe we can chalk this one up to most comic book authors and illustrators rarely making use of workers’ compensation; comic book publishers are not exactly hotbeds of industrial accidents. Still, all they’d need to do is change a single panel, making the plaintiff a bystander instead of an employee, and the rest of the story is more-or-less okay.

17 responses to “She-Hulk # 2

  1. Forgive me if I didn’t quite catch the point if you made it in the post, however… if Dan Jermains was “dead”, then shouldn’t the wife be the one suing? If Danger Man is a legally distinct entity, then what right does he have to the money for someone else’s death? Is he stipulated in the will as the possessor of Dan’s stuff?? (“If I “die” and become a superhero, then that superhero me inherits all my stuff”.)

    • I think what you’re looking at here is an issue with subrogation. It’s entirely possible for another entity to sue on one’s behalf, or even in their place in certain circumstances. In Ontario the Ontario Health Insurance Plan can subrogate for a plaintiff and actually sue a malfeasor for the costs associated with injured party’s health care. Mind you this a function of statute rather than common law.

      Althought that still doesn’t directly advacne an answer for Dan Jermain being dead. That said, in theory Dan disappears and Danger Man pops up in his place.

      As for Workers Comp, it only covers certain types of injuries, and I’m not sure if New York State’s workers comp scheme includes loss of consortium.

      • In New York loss of consortium is a derivative claim; here, it would actually be Jermain’s wife who sued for loss of consortium. Jermain would make a workers’ compensation claim for exposure to ionizing radiation or he might sue under the catch-all “occupational disease” provision. The latter is a bit tricky in this case, as it requires proving:

        (1) that an illness result from the nature of the employment;
        (2) that it be brought about by conditions to which all employees of the class are subjected;
        (3) that the conditions produce the disease as a natural incident of a particular occupation; and
        (4) that the conditions attach to that occupation a hazard that distinguishes it from the usual run of occupations.

    • I believe I would try to establish that his physical growth constituted disfigurement under the occupational disease statute. Surely if a supermodel is similarly exposed to radiation and it gives her powers and physique similar to Blob’s she could sue for disfigurement.

  2. I get the idea of “question of fact” and “question of law”. I really do. But aren’t you over simplifying just a tad? I mean, there would be a lot of cases where they would overlap a bit, surely. I mean, take for the example of non-human intelligences: it is one thing for a judge to state that a chimpanzee who can communicate in sign language can act as a witness in a trial (question of law as decided by the judge) but it is another question altogether as to whether its testimony is reliable (question of fact as decided by the jury). In this case, the judge may rule that Dan is dead and Danger Man can collect his compensation but it’s another question altogether as to whether or not a jury would accept this argument and get Roxxon to pay.

    • There are two paths here. Either the judge will say “Dan is legally alive” and so the question of compensation for wrongful death never gets to the jury, or the judge will say “Dan is legally dead” and so the question for the jury is the extent of compensation, possibly tempered by considerations like comparative negligence.

      Note that an inadequate or inflated award from the jury can be adjusted by the judge. This is a civil case, so the judge has a lot more leeway than in a criminal case.

  3. Maybe I’m just being stupid but doesn’t having Dan declared “dead” cause a lot more problems than it creates? I mean there’s the issue of not being able to vote, get a job, get married, get a license (or really… ANY kind of ID), etc. etc.

    Sure 85 million seems pretty great, but it’s at the cost of having a legal identity? Seems like most attorneys would stray away from that kind of defense.

  4. If the theory is that Dan is dead and that Danger man is a completely different person, then how does he have standing to sue in the first place?

    • You don’t need to be an American citizen to sue, although I suppose the court might throw it out arguing that he isn’t a citizen anywhere.

  5. Consider a person who was negligently dosed with steroids for a period of time. There would be benefits, such as improved muscle growth, better athletic performance, etc. Let us say that the dosage and duration of the steroid exposure was small enough that the negative side effects of steroid abuse were minimal.

    It is still surely true, despite the benefits and de minimis harm, that the person has a claim for bodily injury, yes? (If it is not, then the law is a ass, as Dickens said.) Or if not bodily injury, then the kind of insult to bodily integrity contemplated here must be a tort of some kind.

  6. I don’t know about New York, but if Dan Jermain was a contractor, he would not be covered by worker’s compensation in at least some states. So there is another possibility there.

    • Well, sort of. Independent contractors aren’t necessarily covered by the general contractor’s workers’ comp. policy, but they are generally covered by their own employer’s policy. Just because someone is an independent contractor with respect to one party does not mean that that are not also an employee with respect to another. So, for example, when a subcontractor works at a construction site, it’s true that neither the principal nor the general will have their workers’ comp. policy exposed for his injuries, but the subcontracting company will need to have workers’ comp. for its own employees–and most construction contracts require this as a term of the agreement.

      The one exception is for ICs who are self-employed, as most states do not require the self-employed to procure workers’ comp. policies for themselves. But I don’t think there are many of those who are handling radioactive fuel or whatever it was that Jermain was doing in this case.

  7. Christopher A.

    It seems as though Dan would have some valid claims to have suffered by being turned into a superbeing against his will, even if it didn’t hurt him physically. It is harder for him to live a normal life. Now he has to worry about people being afraid of him, or supervillains kidnapping him for use as a power source for their doomsday device. I’m not sure how this fits in to worker’s compensation, but would this qualify as a tort?

    • Is that because of the changes to his body or because he chose to act in a certain way that caused these villains to be interested in him?

  8. Well, going by the laws of causality in comic-book universes, perhaps the real culpable parties here are Dan Jermain’s parents, for giving him a name that sounded like a superhero nickname and thus guaranteed that he would eventually become superpowered. You know, like how Victor Fries was doomed to become Mr. Freeze, Julian Gregory Day was predestined to become Calendar Man, etc.

    • It would be fairly amusing if a comic book ever had a law passed that ordered parents to not name their children in any fashion that could lead to ‘super names’ (though it’d get struck down for being too vague).

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