Accidental Superpowers and Assumption of Risk

This post was inspired by Tim, who asked about liability for the transformations of Ben Grimm (The Thing) and Bruce Banner (The Hulk). We answer a lot of reader questions in our Mailbag posts, but this one was a big enough issue to need a post of its own.

The story of the two characters is similar in many respects. Both were involved in a scientific experiment that went awry, leaving the two changed in fundamental ways. Grimm’s skin was changed into a rock-like mass, rendering his appearance unusual, to say the least, and he struggled with this for years. Banner, on the other hand, found himself transformed into the Incredible Hulk, prone to almost incomprehensible savagery at the slightest provocation, leading to his exile from Earth and subsequent disastrous return. If any superhuman character might have a cause of action for bodily injury related to their powers, it would seem to be these two.

But there are key facts in their origin stories that change the liability situation significantly.

I. Ben Grimm, aka “The Thing”

The origin of the Fantastic Four‘s powers is told in Fantastic Four #1, November 1961. Dr. Reed Richards was planning a space mission and felt a sense of urgency because the Communists were apparently on the verge of launching their own. The story was published at the height of the Cold war, and this issue came out mere months after Cosmonaut Yuri Gagarin became the first human being to leave the earth’s atmosphere, so the story makes sense in that context.  Richards was discussing the flight with his team when the following exchange occurred:

Grimm: If you want to fly to the stars then you pilot the ship! Count me out! You know we haven’t done enough research into the effect of cosmic rays! They might kill us all out in space!

Susan Storm: Ben, we’ve got to take that chance… unless we want the Commies to beat us to it! I– I never thought that you would be a coward!

Grimm: A coward!! Nobody calls me a coward! Get the ship! I’ll fly her no matter what happens!!

If Grimm were then to act as a plaintiff—presumably against Reed Richards for organizing the flight without adequately researching it first—this little conversation would come back to haunt him. Why? Because assumption of risk is a viable defense in tort law. The basic idea is that if a plaintiff is aware of a specific risk related to a particular activity and engages in that activity anyway, a defendant would be absolved of any duty to protect the plaintiff from that particular risk. This is not any kind of blanket protection, and the specific nature of the risk generally needs to be contemplated by the plaintiff, but in Grimm’s case, there’s a good argument to be made that he had assumed the risk of flying Richards’ ship.

First, the comic indicates that in addition to being a test pilot and thus familiar with the risks associated with piloting experimental craft, he specifically knew about the risk of cosmic rays. Granted, he did not know that they would turn him into The Thing, but not only did no one else know this either, but everyone involved was consciously aware that they had no idea what the effects of these rays would be but that death was a distinct possibility. Besides, “I’ll fly her no matter what happens,” is a pretty broad statement.

Second, both Grimm and Richards seem to possess the same mens rea with respect to the accident. Assumption of risk will not protect a reckless defendant against a negligent plaintiff, but it may well protect a reckless defendant against a similarly reckless plaintiff. The idea here is that the law does not want to protect a party that acted with a lower degree of care over one who acted with a higher degree, and when the playing field is equal, the argument that everyone involved knew the risks of the activity and voluntarily engaged in it is a lot stronger.

Third, Grimm was not a mere passenger. He was a pilot. As such, he had a significant role in the planning and execution of the test flight, and was in fact the only person even potentially capable of steering the craft out of danger. So unlike a passive participant or even someone participating in an event organized by others, Grimm had ample opportunity to mitigate the risks involved both before and during the incident. It’s even theoretically possible that the Storm siblings might have a cause of action against Richards and Grimm as the joint organizers of the project! However, neither of them seems to have been affected negatively, so their “damages” may be nominal,

Ben Grimm knew as well as anyone what he was getting into. He knew that the trip involved the risk of cosmic rays, and he knew that exposure to those rays posed a risk of serious bodily injury or death. No one seems to have known more about the risks than he did, even Richards, though that’s more a matter of shared ignorance than anything else. What Richards did was arguably incredibly foolish, but another famous Ben had some choice words about following fools.

II. Bruce Manner, aka The Incredible Hulk

Bruce Banner’s story contains a significant difference. Banner is characterized as one of the world’s most brilliant scientists, rivaling if not surpassing Reed Richards and Tony Stark. Banner was involved with a Defense Department project to develop a gamma ray bomb or “G-bomb” when he was accidentally exposed to gamma rays, which due to a fluke in his genetic structure transforms him—periodically—into the rampaging Hulk.

Sounds pretty similar to Ben Grimm, right? So far, yes. But there’s a wrinkle which makes all the difference. In the case of the Fantastic Four, just about everyone involved was acting recklessly, and no one intended for anyone to get hurt. But Banner was actually a victim of attempted murder. The way the story is told, just before the test of the G-bomb, Banner noticed that a teenager had breached security and was inside the blast zone. He ordered the test to be delayed and ran to get the kid out of the way. Banner was able to get the kid to a protective trench when the bomb went off, exposing him to gamma rays. But the reason the bomb went off is because Igor Drenkov, a Russian agent, ordered the test to continue, hoping that Banner would die in the resulting explosion. Assumption of risk will protect a defendant against a reckless plaintiff, but it will not protect a defendant that intended for harm to befall the plaintiff. Indeed, Drenkov could be subject to civil and criminal liability, as attempted murder is a serious felony.

But Banner would probably not be able to sue the government, as he was the organizer of the project and the government is likely not liable for the actions of enemy infiltrators. Furthermore, depending on the nature of Banner’s employment, either the Federal Employee Compensation Act, the federal equivalent of workers’ compensation, or the Veterans Affairs Administration would provide compensation for his injuries, as he sustained them while executing his duties as a government employee. So he would theoretically be entitled to some money, though only in proportion to his medical bills (non-existent) and expenses related to mitigating his disability (good luck). In practice, he’s going to have trouble proving his damages, and as the FECA and/or VA would be an exclusive remedy, no other recovery would be available with respect to the government. He’s still free to sue Drenkov though.

III. Conclusion

We’ve seen here that, as in all cases, the facts are really important, and a single conversation, document, or other changed fact can result in a wildly different outcome, potentially saving—or costing—a party enormous amounts of money. Finding these facts and putting them in their proper context is a lot of what litigation attorneys do for a living, and the amount of money at risk is one reason many charge as much as they do.

20 Responses to Accidental Superpowers and Assumption of Risk

  1. Steve Burstall

    Could you also add to this Peter Parker getting bit by a radioactive spider, or Doc Octupus being radiated and this his arms being “welded” on him, or really any non-mutant superhero before the influx of mutants.

    • Actually, (by retro-con) every human in the Marvel universe with inherent powers (Spiderman, The Fantastic Four, etc.) is a Mutant. The genes for superpowers were introduced into the human race way back in history by the Celestials. What are currently called Mutants are just those people that have the x-gene that causes powers to spontaneously manifest (usually around puberty) with out an external stimulus (Cosmic or Gamma rays, radioactive spider bite, etc.)

      • Yeah, I kind of got that idea a long time ago before I quit reading American comics book.

      • So by this ret-con, nobody accidently received superpowers, they just needed a catalyst to manifest these powers. How does this change the legal definition of “accidental superpowers” if everyone has this built-in gene “defect”?

      • That retcon only applies to the Earth X universe. It doesn’t apply to Earth-616: http://marvel.wikia.com/Earth-9997#Earth-9997.

      • Ken Arromdee

        It’s been said to be true in the main Marvel Universe as well, particularly in the 1980′s Official Handbook. I don’t know how much Marvel is sticking to it, though.

  2. In the case of the Hulk, he causes a great deal of property damage (if not physical harm) when he transforms into the Hulk. As Banner’s lawyer, would you argue that the government should be held liable because Banner was not responsible for the accident that turned him into the Hulk. You could argue that they provided inadequate security and allowed a Russian agent to infiltrate their organization.

  3. Hmm. For that matter, although Banner would probably be named as one of the liable parties, it would probably make more sense for lawyers for the plaintiffs to go after the government anyway because I don’t think Banner had all that much money and could not pay for the property damage he caused when he was the Hulk. If he could he probably would anyway but he’s not Tony Stark.

    (Which reminds me, it was dumb for the Avengers to make the Hulk a member as the Avengers could have been considered liable if the Hulk went on a rampage while he was a member of the team.)

  4. The Hulk was made a member of the Avengers when he was intelligent. He was still somewhat emotionally unstable, but he was in control of his own actions–I’d assume any rampages would be his fault.

    Also, I’d think that there really would be expenses related to mitigating his disability, such as the point where he trapped himself in a bunker while the Hulk.

    Here’s another question: It was later revealed that Banner was abused as a child and had developed multiple personality. It was his mental illness which affected his transformation into the Hulk–the Hulk isn’t naturally stupid and childlike, and at various times there have been different combinations of personality and body–at one point the Hulk was intelligent and turned into mindless Banner when he got angry.

    Does this change the analysis any? Being irradiated by gamma rays turned him into a big green superhero, but this is only dangerous to others and inconvenient to himself because of his mental illness–otherwise he’d be like She-Hulk. So would he still fall under disability rules? (The injury alone isn’t very damaging, it just became so in combination with a mental illness–one which wasn’t sustained on the job.) Likewise, would it be harder to hold either the Russian agent or the US government liable, since the fact that he is a rampaging monster rather than just a strong green guy is not their fault? Or are they still at fault because negligently giving all that power to a mentally ill person is blameworthy all by itself?

    • I think if it could be proven that Banner was mentally ill before he even became the Hulk then it would be even more reason to go after the government for liability. You would have thought that he had been given a psychiatric examination at some point given the nature of his job (making weapons of mass destruction). If they gave authority to a mentally unstable person simply because he was a brilliant scientist then I would hope they were at the very least going to watch him very closely. (Ditto for Drenkov.)

      (Which brings up the question of mad scientists. Scientists in the real world need funding. To what extent is the funding government or corporation liable for damages caused by the mad scientist who uses his imventions for evil rather than good?)

      • Ken Arromdee

        Once Banner was retconned as having multiple personality, it was never made clear just why anyone hadn’t noticed it before he became the Hulk, or even whether it actively manifested at all.

        As for Superman and Mount Rushmore, the Silver Age Superman had super-memory. He could restore Mount Rushmore from memory–it doesn’t require artistic talent, it just requires the ability to remember and copy.

        And if Thor is mind-controlled by Loki into doing damage, wouldn’t Loki be responsible for paying for the damage?

      • Martin Phipps

        I once had a chemistry professor who I’m pretty sure was nuts. He claimed that he once read in a book about a certain chemical being “the smelliest” so he decided to make some and the lab he was working in had to be closed down because the smell was so bad (“and everybody was looking at” him as he took the bus home). I think we do tolerate having people be mentally unstable if it doesn’t interfere with their work. In fact, there might be a valid legal claim that a mental illness that doesn’t prevent you from doing your job is entirely equivalent to a physical disability and that employers would not be allowed to discriminate against employees who are crazy if it doesn’t prevent them from doing their job.

    • It does bring up a good question though. What sort of things are missing from the Avengers Charter, things that really should be there if this were the real world? I think that there should be some limit spelt as to the liability that the Avengers would hold if ANY of the Avengers went on a rampage, say for example if Thor were mind controlled by Loki or if Iron Man were so drunk that he crashed into Mount Rushmore. Of course, in the latter example, Stark should foot the whole bill anyway but if it were the Hulk or Thor who destroyed property then I don’t think it would be fair for the Maria Stark Foundation to have to foot the whole bill. There might be a question of the greater good of paying the damages versus bankrupting the Avengers.

      Here’s another question: what if Superman is exposed to red kryptonite and HE destroys Mount Rushmore? I guess his ability to make diamonds from cola would come in handy: he could use that as a source of income and make diamonds until he’s paid for the damages. Or can Superman fix Mount Rushmore? Has Superman ever been portrayed as having artistic talent?

      Has the question ever come up in DC comics? I can’t quote issue and page number but I do remember Iron Man telling (promising) the public that Tony Stark would pay for damages caused when they attacked a villain in a public area. Of course Iron Man’s association with (if not his identity as) Tony Stark was publically known. Until recently with Bruce Wayne admitting that he was “funding” Batman, it would have been suspicious if Batman were to tell the public that Bruce Wayne would pay for damages caused by a rampaging Superman.

      What about Superheroes that cause property damage and can’t afford to pay? I guess that would be a good reason to want to keep one’s identity secret. I also imagine that would be a good reason to want to belong to a super team like the Avengers or the Justice League and have rich people on the team to cover such costs.

      • As it relates to property damages caused by heroes or villains, I’m more interested to see what the ramifications would be outside of just the direct damage. Lots of victims of indirect damage would also have a claim (like hotels in the gulf trying to get money out of BP currently).

        It seems like the number of pretty major disasters that happen frequently there would have to be someone that could handle claims for this. Or would the Avengers and the Justice League have a sort of “accidental damage” insurance protection for the event that they knock over a few buildings?

        What about other services? Things like flight cancellations always have a standard return policy. How does “Superman is battling someone in the sky so we’ve decided to cancel flights” fall into the refund policy of Airlines? Would the airline simply refuse to refund the flight and cite it as an “act of nature” or would the hero or villain be liable for the costs of the cancelled flights?

      • Batman telling the public anything would be out of character in his modern incarnation, since he tends to stick to the shadows. But Wayne, a noted philanthropist, could simply volunteer to repair the damage without anyone suspecting a connection.

  5. I’ve been thinking about another superhero who acquired his powers in a similar way, Doctor Manhattan of Watchmen. Trapped inside a timelocked radiation chamber, died, then willed a version of himself back into existence. It is unlikely that doc manhattan would have a claim since the accident imbued him with certain gifts (and money is effectively irrelevant to him), not to mention his contributory negligence in leaving a stop watch in a radiation chamber. But could his remaining family (his father was dead but assume that his mother was still alive) sue for wrongful death especially considering that the John they knew before the accident really did ceases to exist? Considering that he was a very young, ivy-league educated nuclear physicist during the cold-ware wouldn’t that entitle them to a pretty substantial damages award based on lost wages.

  6. I’d think that if he’s capable of willing anything, he’d be considered alive, even if his body is destroyed.

    You could ask the same question about Doctor Solar. His origin has always been similar, and the new version of the origin is even closer.

  7. Re David Schley’s comment on Dr. Manhattan:
    Echoing what was said before: Osterman’s status as an employee renders his accident subject to the applicable workers comp laws (either Arizona or federal). Osterman’s family would be limited to death benefits, and Osterman’s supposed contributory negligence would be irrelevant, since workers comp is a no fault system. I don’t know what the death benefit in AZ or the feds was in 1959, but in California (where I practice) the max death benefit for a deceased worker without a surving spouse or kids was about $17,500, plus up to $600 in burial expenses (which would just about cover that government-issued thumb tack they used to pin Jon’s picture on the bulletin board).

    And I have a further thought on the discussion of Bruce Banner: again, I would also assert that any claim he has would be limited to workers compensation (state or federal), limiting him to medical treatment, permanent disability and temporary disability. So, every time he Hulks out, arguably he is unable to function in his employee duties as a scientist. Therefore, every time he transforms, wouldn’t he be eligible for temporary disability? (He would be in the green in more ways than one).

  8. “[H]e’s going to have trouble proving his damages, and as the FECA and/or VA would be an exclusive remedy, no other recovery would be available with respect to the government.”

    Oh, I don’t think that he’d have that much trouble – even slight dealings with the VA would probably be enough to enrage Banner, turning him into the Hulk, and then his damages would be all-too-readily apparent

  9. “I once had a chemistry professor who I’m pretty sure was nuts. He claimed that he once read in a book about a certain chemical being “the smelliest” so he decided to make some and the lab he was working in had to be closed down because the smell was so bad (“and everybody was looking at” him as he took the bus home). I think we do tolerate having people be mentally unstable if it doesn’t interfere with their work. In fact, there might be a valid legal claim that a mental illness that doesn’t prevent you from doing your job is entirely equivalent to a physical disability and that employers would not be allowed to discriminate against employees who are crazy if it doesn’t prevent them from doing their job”

    The ADA does recognize that a mental illness can be such that it impacts one or more activities of daily living. As such, employers may have to make reasonable accommodations for it if doing so allows the employee to perform job duties. If not, they either need to show that the accommodation is not reasonable, or that they would face undue hardship in meeting it.
    But the key in all this is reasonable. Allowing an employee to trash a lab because they want to test the world’s smelliest substance is not reasonable unless that is a normal part of their job anyway. Reasonable accommodation doesn’t change the standards of the job. It just makes sure the employer makes reasonable efforts to provide the employee with the resources so they can meet the existing standards (or possibly provide alternate but equivalent duties). So if your employee works at a call center where they are expected to take 5 calls an hour, reasonable accommodation might be a modified keyboard and headset that help them meet this goal of 5 calls, or possibly processing paper correspondence (if you receive such. But it is not reasonable to say they only have to take 3 calls an hour.
    So back to your professor, if there’s something they can reasonably do that keeps him focused and not doing stuff that will destroy labs, they may have to provide it. But they do not have to allow him to stink up labs in personal experiments if he otherwise does his job OK. That’s not reasonable.

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