We’ve written one post about the Thor movie already, but there are a couple of other legal issues to discuss. As before, spoilers follow after the break.
I. Don’t Tase Thor, Bro
Early in the film, Thor is discovered in the New Mexico desert by Jane Foster’s research team. Thor is disoriented as well as confused by his state of relative weakness. Darcy tases Thor, apparently out of an abundance of caution. But was this a justifiable use of reasonable force in self-defense?
New Mexico, where the potential tort occurred, follows the common law rule that “the privilege of … self-defense, is limited to the use of reasonable force.” Downs v. Garay, 742 P.2d 533, 536 (Ct. App. N.M. 1987). The Downs case cites the Restatement (Second) of Torts. Here’s the relevant part of what the Restatement has to say about self-defense (in § 63, for those of you playing the home game): “An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.” So now there are two questions: 1) was the taser reasonable force and 2) did Darcy reasonably believe that Thor was about to intentionally inflict a harmful or offensive contact or bodily harm against her or the other members of the research team?
A. Reasonable Force
As the commentary to the Restatement explains “the means used must be proportionate to the danger threatened.” Note that it must be “proportionate” not “equal.” So while Thor was unarmed, he was clearly both taller and stronger than Darcy. The use of a non-lethal weapon like a Taser was probably reasonable, especially given that “In determining [the reasonable character of the means], account must be taken of the fact that the other’s conduct has put the actor in a position in which [s]he must make a rapid decision.” Courts most frequently draw lines where someone pulls a “dangerous weapon,” usually something like a knife or a gun, but potentially any object capable of inflicting serious bodily injury without trying too hard. Tasers don’t fall into that category most of the time.
B. Reasonable Belief
The second issue is whether Darcy’s belief in the immediacy of the threat was reasonable. The question is whether a reasonable person in Darcy’s shoes would have thought that tasing Thor was the only way (apart from fleeing or complying with Thor’s demands, neither of which are required) to prevent a harmful or offensive contact that Thor was about to intentionally inflict on Darcy or someone else.
Before being tased, Thor advances on Darcy, saying “You dare threaten me, Thor, with so puny a weapon?” Combined with his shouting and erratic behavior, this makes a decent case for reasonable belief, especially given that the group was alone in the desert with little opportunity to call for help or the assistance of the police.
C. But Was the Tasing Actually Privileged?
But what of the fact that Darcy pointed the Taser at Thor before he threatened anyone? There’s the rub. As the Restatement explains in the commentary on § 72:
If the actor, not being privileged to do so, intentionally inflicts or imposes, or attempts to inflict or impose bodily harm or an offensive contact … upon the other, the actor is not privileged to use force to defend himself against the force which the actor thus compels the other to use in self-defense.
The wording there is a bit confusing. In a nutshell: self-defense doesn’t apply if the defendant started the fight. Arguably Thor was acting in his own self-defense because Darcy threatened him with a Taser without privilege to do so. Darcy got a little trigger happy, and if it had been a strange man lost in the desert and not the God of Thunder, she might have had criminal charges and a civil suit on her hands. Especially since they had just run over him, so he was probably justified in feeling a bit put upon.
II. Jane Foster and Negligence
Speaking of which, Thor gets run over not once, but twice. In both cases Foster doesn’t intend to hit him, but could she be found liable for negligence in either case?
A. The First Case
In the first case, Jane and Professor Selvig are wrestling with the wheel while driving towards the storm caused by Thor’s arrival on Earth. Suddenly, the silhouette of a man appears in the dust cloud and the van strikes Thor.
This does not strike us as negligent. Although Jane was being careless, the likelihood of running into a man in the middle of the desert, especially in the middle of a freak storm, is so remote that her (and Professor Selvig’s) carelessness likely does not rise to the level of a breach of a duty of due care. Again, the standard for negligence is where a reasonable person would have perceived a risk and avoided a course of conduct as a result. A reasonable person does not anticipate the Bifrost depositing an exiled, depowered Asgardian (or anyone else, for that matter) in the middle of the desert at o’dark-thirty.
B. The Second Case
The second case, when Jane backs into Thor in the hospital parking lot, is quite different. A hospital parking lot during the day is a place where one can reasonably expect to find people walking, including people who may be less than fully aware or less able to move out of the way to avoid an accident. Jane could easily have avoided the accident by checking her mirrors before backing up, so the negligence case is pretty cut and dry here.
However, it’s unlikely that a plaintiff in Thor’s position would be entitled to much in the way of recovery, because awards are based on liability and damages. Award = liability x damages. Thorsdoes indeed get knocked down, but, well… Whether or not someone other than an Asgardian, depowered or no, would rebound so quickly and completely is an open question–defense attorneys see all kinds of crappy cases where someone who takes a minor tumble claims hundreds of thousands in damages–but from these facts, it’s unlikely that a lawsuit would be filed, and defense counsel would almost certainly want to litigate the damages issues, not the liability issues. Foster’s liability is probably somewhere around 90% (Thor did kind of just wander out there), but the damages are pretty minimal. 0.9 x [not much] = [slightly less than not much].
There’s a lot of stuff going on here, if you stop to look for it. The law winds up having something to say about almost everything the government does, and motor vehicle accidents are sort of a gift that keeps on giving. Priest comes out on Friday, but that isn’t set in the US legal system, so our next in-depth review will probably be Green Lantern, which comes out on June 17.