Daredevil #7

There weren’t a lot of legal issues raised in the most recent Daredevil, so this will be a slightly short post, but there are a couple of points, including a nice detail about the tort defense of necessity.  Spoilers inside!

In this issue, Matt Murdock takes a group of blind schoolchildren on a field trip.  Or rather, he tries to: it turns out the lodge they were intending to stay at was double-booked (“they will hear from your lawyer,” Matt says) and the group has to return early.  On the way back, the bus is caught up in a snow storm and an accident leaves the driver (the only sighted person on the trip) dead and the group stranded in the wilderness.  Ultimately they find a house where they are able to warm up, eat, and call for help, although getting inside requires breaking a window.  Matt remarks that he’ll pay for the window and the food and, apart from the deceased driver, everyone seems to do okay.

So this leaves us with two questions: did they have any legal recourse with regard to the double booking?  And would paying for the food and window be enough?

I. Double Booking

(I just gotta say that it’s fun to talk about such an everyday legal issue like this one.  It’s one of the things that makes reviewing Daredevil so interesting compared to other superhero books.)

The answer here depends a lot on facts we don’t have, but I think there’s a good chance Matt could have a claim.  Matt says that he “booked that lodge months ago,” but he doesn’t say whether he prepaid or had a “guaranteed” reservation.  While we couldn’t find any New York overbooking cases, prepayment and guarantees have been cited by other courts as important factors in whether overbooking can constitute a breach of contract or even a fraud.  See, e.g., Onyx Acceptance Corp. v. Trump Hotel & Casino Resorts, Inc., 2008 WL 649024 at 13 (N.J. Super. Ct. App. Div. 2008); Rainbow Travel Svc., Inc. v. Hilton Hotels Corp., 896 F.2d 1233 (10th Cir. 1990); also see Wells v. Holiday Inns, Inc., 522 F.Supp. 1023 (W.D.Mo. 1981) (no fraud but there was a breach of contract).  So depending on the facts, Matt may indeed have a cause of action against the lodge.

It’s worth noting that the reason people don’t routinely sue hotels for overbooking is that the usual hotel policy is to pay to put the guest up at a similar nearby hotel.  Ordinarily this severely limits or even eliminates any potential damages because the guest got, basically, what they paid for.  In cases where staying at the specific hotel was important (e.g. for a wedding or other emotionally significant occasion), the plaintiff is out of luck because damages for emotional distress are almost never available in contract cases.

But in this case the kids were turned away entirely with no alternative lodging, so at the very least the lodge would be liable for the value of the stay.  It would, however, be difficult to make the lodge liable for any of the injuries sustained during the trip, especially since the bus driver took a detour.

II. Necessity

As one might expect, Murdock and the kids would likely not be criminally or civilly liable for saving their own lives even if it required trespassing, breaking and entering, and theft.  The defense of necessity is not easy to prove, but a group of blind people facing otherwise certain death is a textbook example.  But I wanted to mention that Matt isn’t just being nice when he mentions that he’ll repay the homeowners for the broken window and the food.  While private necessity may excuse the use of the homeowners’ property, Matt is still liable for the damage.  The point of the defense is that Matt isn’t liable for the trespass, and the homeowners could not have forced them back into the storm, if they had returned before help arrived.

III. Conclusion

Daredevil continues to be a great series under Waid and Rivera.  Plus, it raises  interesting legal issues that are a nice change of pace from the usual stuff we write about.

13 Responses to Daredevil #7

  1. I have a related question about the duty to recue another person and/or keep them from harm.
    I haven’t read the comic but if the blizzard had already started before they left the hotel, and the hotel forced them back out into the blizzard (as opposed to letting them spend the night in the lobby) could the hotel be libel if they had been injured due to the storm?
    On a related note, what if the house Murdock found hadn’t been empty. If the owner had refused to let them in, could Murdock have legally forced his way in (without causing serious injury)?
    If the house’s owner had forced the children out of the house at gunpoint, what if anything is the homeowner guilty of? (Besides being a sociopath of course)

    • I’d like to hear a reply to this question too. I imagine the legal opinion would depend on what state they were in. In most states, the homeowner is given a lot of leeway in terms of protecting his family or even his property. If a homeowner came home and saw lights on and then went to get a gun from the shed, I think it would be the same as if the homeowner had been asleep upstairs and woke up when he heard somebody breaking in.

      I suppose you could argue that these were little children so they weren’t a threat but that then brings up another legal issue, doesn’t it? If Matt takes little children on a field trip and it goes horribly wrong and one of the children gets hurt, how much personal liability would Matt himself be facing? Assuming the parents didn’t know that Matt Murdock was Daredevil, wasn’t this a case of the blind (literally) leading the blind?

    • I also am very interested in the question of what the results would have been if the house had been occupied, but I will take a stab at question regarding the hotel not letting them stay in the lobby.

      I think the question would be fairly detail dependent, with the prime detail being how severe the storm is. If the storm is such that it would be dangerous for a person to be out unprotected in it, but not so bad as to prevent someone from safely leaving in a modern vehicle, then the hotel is probably free to eject them. They clearly have their own vehicle and even if we alter the situation so that they don’t, the hotel is probably only obligated to let them stay long enough to reasonably call for a taxi/bus to come get them (the hotel might be obligated to pay for the taxi/bus as part of damages caused by their breach of contract, but that is dependent on the contract and different from being forced to let them stay.)

      On the other hand, if the storm is so bad that it is unreasonable to drive, then the hotel probably could not eject them. First note that as a public accommodation, one where people coming in to attempt pay for their services would generally be invitees, there is a “special relationship” at play here (Talked about in L.S. Ayres v. Hicks (1942) regarding a boy getting his hand stuck in a department store escalator). This is strengthened by the fact that Murdoch had reservations, which means there is a contractual relationship at play (even if they may be able to argue that that contract permits them to double book in some way so that the hotel hasn’t technically breached, the fact is a relationship exists). In short, we are not talking about two strangers passing in the night with no general duty to rescue. Those relationships probably create at least a limited duty to rescue. Moreover, it could be argued that the hotel, even though it had no control over the weather, created the hazardous situation by overbooking. When you create a hazard, you have a duty to rescue others who are about to be injured by that hazard.

      An alternative argument that the hotel would have to let them stay in the lobby if the situation was truly dangerous for them to leave is that it is negligent, even with no specific duty to rescue, to force people into a hazardous situation. And of course, even if the hotel tried to order them out, Murdoch and his group could simply sit down and claim the defense of necessity against claims of trespassing. As long as they were peaceful and not stealing, the hotel probably could not justify any use of force beyond ordering them out or calling law enforcement even on a clear and sunny day.

      So in short, as long as the storm was not so bad that it would not be reasonably safe for them to leave the hotel could probably force them out, but if it was so bad that it would not be reasonably safe for them to leave then the hotel would have to let them stay at least until that situation changed.

    • The two scenarios you raise sort of have the same answer. In either case, forcing someone out into the storm could make the hotel/home owner potentially liable for damages that are reasonably foreseeable (ex: injuries sustained from frostbite). However it would ultimately be a question of negligence. If the land owner owed a duty of care to the children, and then failed in that duty causing harm, then there could be a claim for negligence.

      Let’s look at the facts: Murdock and the students were supposed to be guests of the hotel, so it’s not hard to have a duty of care inferred there, as it would for any other guest. But, when they left, the bus driver was still alive and well (and in the explanation above, the storm hadn’t hit yet). So the likelihood of exposing them to the risk of freezing to death seems pretty small at that point. Moreover, the accident seems to have occurred off of the hotel owner’s property, so it’s a pretty tenuous claim.

      On the other hand, the students were trespassing on the homeowner’s property (i.e entering without permission). The doctrine of necessity relieves the students of liability for trespassing, but meanwhile the land owner still generally owes a duty not to intentionally harm trespassers. The home owner probably would have breached this duty by forcing them back into the very same situation that made the doctrine of necessity applicable in the first place.

      Lastly, threatening someone with a gun would probably bring about a claim for assault. In civil situations, assault is generally defined as intentionally causing someone the fear of imminent unwanted contact (FWIW, battery is actually causing that contact).

      • TimothyAWiseman

        “but meanwhile the land owner still generally owes a duty not to intentionally harm trespassers. The home owner probably would have breached this duty by forcing them back into the very same situation that made the doctrine of necessity applicable in the first place.”

        I do not think this is clear cut. First, as to the “not to intentionally harm trespassers”, there is generally a privilege of defense of property that permits use of reasonable force to protect your property, both real and chattels and includes trespass. As was made clear in Katko v. Briney (1971), that will generally fall far short of using lethal force or even force which would cause severe bodily harm, but depending on circumstances (and jurisdiction) it is likely to be well above absolutely no intentional harm.

        If you are talking about a duty to protect a trespasser from hazardous conditions on your land, it certainly exists but it is a very limited one. You cannot intentionally trap someone on your land, and you must generally provide some protection against hazardous conditions, but a warning sign is often sufficient. British courts sometimes refer to this as a “Duty of common humanity” from the phrase in British Railways Board v Herrington. Of course, this duty is heightened somewhat when the premises are such that they are likely to attract trespassers and particularly children, as discussed in Chicago, B. & Q.R. Co. v. Krayenbuhl (1902) (regards a child injured by a railroad turntable). While the trend seems to be to increase the duty owed to trespassers somewhat, it is still of a different, and much lesser, quality then the duty owed to an invitee.

        And it is definitely true that you cannot expel a trespasser into a truly hazardous situation, such as the storm. If the owner returned while Murdoch was still there, he could not evict them until the storm had passed. But what I am not clear on is whether the owner could have prevented them from entering; perhaps even using “reasonable force” to do so, while the storm was raging. I believe that certain jurisdictions (I believe North Dakota for instance, though I can’t find it off hand) have attempted to create, by statute, requirements to shelter people caught in extreme weather, but I do not know of a broad common law basis for this or how common those statutes are.

      • Tim,

        Thanks for the clarification (see below). The concerns about attractive nuisances and restrictions on boobie traps were exactly what I was thinking of when I qualified my post with “generally.” Thanks for the case citations, too.

  2. A general question: Daredevil is blind, but he has super-senses which in practice mean that blindness is not a handicap for him (though I assume he still can’t drive a car, unless it has no windshield). Is he committing any crime if, to keep his secret ID, he passes himself off as a typical blind person who is handicapped by his vision? Would it be fraud for him to take a seeing eye dog to a place that doesn’t allow dogs, if he doesn’t really need it? Would he be prohibited from filing taxes as a blind person (or would the legal definition of blind still consider someone to be blind even if he has a radar sense)?

  3. I just discovered this blog (I run at dedicated Daredevil blog myself, at The Other Murdock Papers) and I love seeing comic book geekery in all its forms. Reading this stuff, and all the comments, is a ton of fun. Great job! :)

    In response to Ken Arromdee: I would strongly disagree that Matt Murdock isn’t handicapped by his vision. He’s more like someone with a severe visual impairment passing himself off as totally blind (i.e. “more” blind than he really is from a strictly functional standpoint) than someone on par with a sighted person pretending to be blind. The number of situations in which the heightened senses plus radar sense fail to fully or even nearly compensate for a lack of natural vision is huge once you start thinking about it.

    Also, the legal definition of blindness is quite lax in the sense that all of us might have run across several people who are legally blind and not even noticed. Most legally blind people (defined in the U.S. as having worse than one tenth of normal visual acuity – worse than 20/200 that is – OR having a visual field narrower than 20 degrees) are not totally blind and many of them are able to walk around quite comfortably without a white cane or guide dog, all depending on the severity and specifics of their particular vision problem.

    While writers’ various interpretations of Daredevil’s radar sense differ quite a bit, it’s clear that it’s limited in many ways. It may be 360 degrees, but it completely lacks color perception and many writers (Waid and a couple of others in particular) seem to imagine the acuity of it to be quite low, good for detecting the general shapes and arrangement of things but a far cry from 20/20. So, even with the radar sense as it is, a case could easily be made that Murdock is still legally blind, especially since he’d actually (and truthfully) fail the tests used to measure it. Of course, from a strictly legal standpoint, he shouldn’t have any problems anyway, but I’d leave that one up to the lawyers here.

    Anyway, I’ve written quite a bit about this topic, most recently here.

  4. Re: Daredevil, I’m not convinced. He can’t watch a movie or read a blackboard or sign, but that’s pretty much all of the functions of a sighted person that he cannot do. If he tried to live like a sighted person; he would be completely able to do so except in a few highly specific situations such as reading signs.

    • The fact that he can function as though he had sight is immaterial. Blindness is pretty narrowly defined by statute. See, e.g., 42 U.S.C. § 416(i)(1)(B) (““blindness” means central visual acuity of 20/200 or less in the better eye with the use of a correcting lens). This unambiguously bases blindness on the (in)ability to see with one’s eye(s), not whether or not one can achieve the same function using other senses.

    • TimothyAWiseman

      As James Daily and Christine point out, blindness is defined by statute, and there is no doubt that DareDevil falls within that definition.

      But it might be interesting to look at Disability more generally. Disability is defined in 42 U.S.C § 12102, and 42 U.S.C. § 12102(4)(E) states that tools to remove the impact of a disability, including medication, technology, learned behavior, or neurological modification are not considered to remove the status of disabled for legal purposes. The next paragraph does specifically exclude contact lenses and glasses from that list and someone whose vision is fully corrected by glasses (like me) would not be considered disabled for these purposes. But Daredevil’s vision is not fully corrected by his other enhanced senses.

      As you point out, he cannot drive (even if can get a perfect 3d sense of every object around him at sufficient distance, perhaps being more aware than a sighted person, he still can’t see the traffic lights…) and as Christine points out he can’t use a computer (at least not without special technology like a screen reader).

      So, even in absence of laws that would define him to be blind, he would still be considered legally disabled.

  5. With all due respect, that’s ridiculous. How can not having any color vision and only being able to see shapes and relative depths not be a major visual impairment? Imagine going through a day with everything being pitch black (including computer screens) and tell me that’s not something that would pose a major problem. If having access to only three-dimensional information and no two-dimensional information doesnt constitute a major disability, I don’t know what does. There’s no way Matt Murdock could pretend to be sighted for any real amount of time in real life.

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