Superman: Grounded (# 707): Theft, Necessity, Insurance, and Mitigation of Damages

The second hardcover volume of Superman: Grounded came out in December, and the very first issue, Superman # 707, contains a doozy of a legal conundrum.

Here’s the setup. Superman is in Des Moines, Iowa, saving people and basically doing his thing. He’s on his cell phone (Yes, he’s using a cell phone. No, it doesn’t make any sense for him to be doing so.) with Lois, when the chemical plant she’s at has a fire. He hears it and flies over. He puts out the fire with water from a nearby creek, but notices that the fire has caused structural damage to the plant, which is likely to collapse and possibly even reignite. So, seeing a passing truck full of steel bars, he ganks a bunch of them and uses them to shore up the building. The driver of the truck says, and I quote, “Hey, Superjerk, you can’t just take those!” Which is probably true. Superman’s response is “I assure you, sir, it’s for a good cause.” Which is as may be, but doesn’t change the fact that Superman has likely stolen at least several thousand dollars worth of goods.

I. Theft and Necessity

The first question is whether what Superman is doing is theft. The answer seems clearly to be “Yes.” He’s intentionally exerting unauthorized control over property that does not belong to him with the intention of depriving the owner of its use. That’s theft all right.

The second question is where he has any available defenses. The obvious one would be necessity, a defense to pretty much every crime except murder and rape. The following factors were identified by the Iowa Supreme Court in State v. Walton, 311 N.W.2d 113 (Iowa 1981):

(1) the harm avoided,
(2) the harm done,
(3) the defendant’s intention to avoid the greater harm,
(4) the relative value of the harm avoided and the harm done, and
(5) optional courses of action and the imminence of disaster.

The Iowa Court of Appeals looked at the necessity defense in the context of a theft-related charge in the unpublished case of State v. Pinegar, and while it declined to give an instruction on the necessity defense—it didn’t help that the defendant was high on pot and meth at the time—it implicitly recognized that the defense was available.

So while what Superman does is clearly theft, he’s probably got a good defense: necessity. The harm avoided is massive, potentially the destruction of the entire plant. The harm done is not nominal, but maybe a few grand at best. Superman was definitely acting to avoid greater harm, and the harm avoided is far greater than the harm caused. The disaster was imminent, and while there may have been some other options, he was probably going to have to steal someone’s goods to get the job done. No time to pay for it, and it needed to happen. So Superman is probably not liable for theft here.

II. Insurance and Mitigation of Damages

At the plant, Superman thinks to himself “I’ll make sure the factory’s insurance covers the cost of these steel bars.” Which is a nice thought, to be sure, but whether or not Superman wants insurance coverage for this is irrelevant. The insuring agreement either provides coverage or it doesn’t.

So here’s the question: will the factory’s insurance provide coverage for steel bars stolen by Superman and used to shore up the plant?

Clearly, this depends on the contract language, and we don’t have that in front of us. But most insurance policies are based on forms provided by ISO, which is the company that drafts what are now the industry standard forms. Insurance companies pay to have access to these forms and use them in their policies. Sometimes they modify the forms, sometimes not, but either way, the use of these forms provides valuable standardization and predictability to insurance coverage nationally and internationally. So we’re going to be assuming that the factory has a policy which is pretty close to the ISO standard insurance policy, if the reader will pardon the expression.

This is important, because in property coverage, ISO insurance policies have a provision which provides coverage for efforts taken by insureds to mitigate their damages. Say a tree falls on your house during a rain storm. If you wind up using a few pieces of plywood to cover the hole, the company will pay for the materials used. This works to the company’s advantage, because it creates an incentive for insureds to take affirmative steps to minimize the total amount of damage, and a few pieces of plywood are likely to be a lot cheaper than a few days of additional water damage.

So here’s the thing: if the factory had gone out and purchased a bunch of steel bars, there would clearly be coverage. The question is whether there is coverage for the theft of the bars. Three things come to mind. First, it wasn’t the insured that did the mitigating. It was Superman, and the insured didn’t ask him to intervene. There’s no coverage for him, generally speaking. He has no contractual relationship with the company. Second, there is generally an exclusion for “intentional bad acts,” e.g., theft. Having liability insurance will not help you if you knock over a liquor store. But third, it was Superman, not the factory, that stole the bars, so it’s Superman, not the factory, which is liable for the theft.

Now, granted, the factory could be held liable under some equitable theory. They’re certainly receiving a benefit from the bars, and the steel company is certainly out some money. So to the extent that the factory owes the steel company anything, there’s probably coverage under the mitigation of damages theory.

Superman, however, is probably on his own. Nobody asked him to intervene, and nobody at the factory authorized his actions, so it’s going to be hard to say that he was acting on the insured’s behalf and thus covered by the policy. So for the actual cost of the bars, there’s likely coverage—provided the steel company makes a claim against the factory—but any fines or other damages assessed against Superman beyond that are probably not covered. As discussed above, Superman probably has a good defense to both criminal charges and tort claims, but that doesn’t mean insurance will cover the loss.

Which is not to say that the insurance company won’t pay. Insurance companies pay claims they don’t technically owe all the time, because it’s not worth fighting over, or to keep a valued client, or for PR reasons. They generally try to negotiate on the loss, i.e., “Look, we don’t think there’s coverage here, but rather than fighting you about it, which will cost us money, how’s ten or twenty cents on the dollar?” Denying Superman coverage for being a Good Samaritan seems a bad PR move, and the loss is pretty minor compared to the damage caused by the actual fire, so they’ll probably just pony up, grateful that the whole thing didn’t go up in flames.

But what if the factory’s insurance company doesn’t pay?  Luckily that doesn’t meant the steel company is out the money.  It (or the trucking company) almost certainly has insurance of its own, which likely covers theft.  Note that one can be insured against the risk of theft by others, but one can’t insure against claims arising from one’s own thievery.  That’s one reason the steel company’s insurance would likely cover the loss but the factory’s wouldn’t.

III. Conclusion

Superman basically stayed within the law here, even though he left a bit of a mess in his wake.  But that’s not even all in this issue! We’ll be talking a look at the bribery of federal regulatory officials, another topic raised in this issue, in a later post.

39 Responses to Superman: Grounded (# 707): Theft, Necessity, Insurance, and Mitigation of Damages

  1. For people living in a superhero universe, there’s one other factor to be considered here. If I or my property is in immediate danger, and the only way Superman could rescue my is by his actions as outlined above, I wouldn’t want him to have to consider the ramifications of the law. I would guess that this is one of those cases where the laws in a superhero universe would be altered to accommodate this sort of situation.

    Or let me put it another way: do the issues you describe above change significantly if only one steel bar is needed, and a municipal non-powered firefighter does exactly the same thing Superman did? (I suggest one steel bar because I want the actions to be something a non-powered person can do. If you can’t accept that, assume the basic scenario: a rescue worker commits a theft to keep the plant from collapsing.)

    • One major difference in that case is that the firefighter may have immunity. As a private actor, Superman doesn’t have that benefit.

      The problem with changing the law to give superheroes immunity is that it’s difficult to decide the scope of the immunity. Presumably it should be something like “while in the course of doing superheroic acts,” but what is that, exactly? Even if a suitable definition could be determined, it would still leave the superhero having to decide whether this particular action fit the definition, which is not that much better than deciding whether necessity, defense of others, etc applied. And speaking of those, it’s not clear just how “superheroic acts” would differ from necessity, defense of others, etc in practice.

      One defense not covered in the post is public necessity, which could absolve Superman of tort liability and provide indemnification for the steel company. As the Restatement (Second) of Torts puts it: “One is privileged to commit an act which would otherwise be a trespass to a chattel or a conversion if the act is or is reasonably believed to be necessary for the purpose of avoiding a public disaster.” A serious fire is a commonly cited example of a public disaster. In some jurisdictions (but only some!) the state or city would reimburse the steel company for the loss even though Superman caused the loss in his capacity as a private actor.

  2. There are countless similar incidents in superhero comics/shows where the heroes take or destroy other people’s property without permission in order to fight the bad guys — for instance, picking up a parked car and tossing it at the bad guy, or ripping up a lamppost and wrapping it around the bad guy, or just straight up punching a bad guy through several buildings. Superheroes are notoriously unconcerned with private property rights.

    And it’s not just superheroes; unpowered action heroes often do much the same. For instance, it was a running gag in the Jackie Chan Adventures animated series for Jackie, while chasing/being chased by the villains, to take some surprised person’s bicycle/car/motorcycle/skateboard/whatever, race away with it, and yell “I’m sorry I’ll bring it back thank youuu!!” as he did so. Which I doubt would count as a legal defense to charges of theft.

    • Actually? It might. Intent is an element of theft. Taking someone’s property with the intent of returning it isn’t actually theft, because there’s no intent to deprive the owner of value. It would, however, be a misdemeanor offense, i.e., interfering with the property of another without permission.

      Of course, all of that depends on whether one can prove to a jury that one intended to return it. Not returning it would presumably make that a pretty tough sell.

      Necessity would still presumably be a defense to either crime, but the difference in intent would change felony theft into misdemeanor conversion.

  3. I always wondered that about the Jackie Chan show (good cartoon, by the way). Did he expect them to sit there and wait for him to return their property? I felt like he should at least toss them a business card or something. “Call me — I’ll bring it back to you.” Wouldn’t have taken that much more animation or time.

    I presume providing actual contact information would be stronger evidence of intent.

    • Considering that he usually was attempting to keep rather dangerous artifacts out of the hands of organized crime and murderous demons if he has any defense to his crimes then the business cards aren’t that necessary, nor would he have much time to do so.

  4. From La Wik:

    “In American law, the case most often cited to explain the privilege of private necessity is Vincent v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910).”

    In this case, a steamship was intentionally kept secured to a dock during a violent storm, and the dock was damaged as a result. The two questions usually discussed in a Torts class:

    1) Could the owner of the dock have directed the crew of the steamship to stop trespassing, and would they have been liable for trespass (including criminal trespass) had they not done so?

    2) Assuming that either the dock owner didn’t do that, or the crew declined to comply, is the owner of the ship liable for the damages?

    General result: The ship’s crew may tie to the dock, even absent permission or given active direction to depart, if doing so would reasonably prevent a greater harm, including loss of life, than it caused (ditto.) They have the defense of private necessity. However, the owner of the ship is liable for all damages: the defense of private necessity does not defeat the requirement to make the owner of the property whole, only the usual requirement to immediately quit the property when directed to do so by the rightful owner, and only for so long as the necessity exists. If the ship were still seaworthy when the storm ended, it would have to depart immediately upon the threat’s dissipation, or face additional liability for the tort of trespass.

    In this case, the owner of the factory would have had the defense of private necessity to reach the bars, as the post points out. I’d say that was a pretty good argument, absent specific language in the policy, that since they did something they were entitled to do, that the insurer would have to pay the claim to the owner of the bars.

    The confounding factor of Superman’s actions breaks that, but as is also pointed out, it would be the worst PR in the world to decline to pay the claim just because Superman was involved.

    Questions which do not arise here, but would be relevant, would be things like:

    1) What if the truck driver had resisted the taking? Obviously, no ordinary mortal can resist Superman, who could have taken the bars before the driver even knew it, much less found any way to resist him. But what level of force would be excused, if any, in such a taking by a lesser actor who did have a reasonable claim of private necessity? What level of force may be used to resist a taking in the course of such necessity? I think this all turns into pure equity evaluation very fast, especially if we sideslip over to public necessity.

    2) What if the bars had been on their way to shore up some OTHER building, which subsequently collapsed because the reinforcing steel did not arrive in time? What liability of Superman/factory owner to the trucking company and/or owner of the second building? If Superman had been informed of this and had taken the steel anyway, would his liability increase? Would the factory owner’s?

    • Again, the defense here isn’t one of private necessity, but public necessity. Scroll down a bit on that Wikipedia article, and you’ll see that the analysis is quite different.

      • James Pollock

        Wait… is it? I know that fire is usually treated as public necessity because of the danger of the uncontrolled fire spreading to other properties, but Superman didn’t need the steel to fight the fire, he needed it to prevent the collapse of the building. Unless there’s something else to the story, it sounds more like a private necessity to me.

        As to the questions: You can’t self-help repossess your own property if doing so causes a disturbance of the peace, so I’m pretty sure you can’t take possession of another’s property with a disturbance of the peace even under the color of necessity.

        I can only assume that, while the necessity defense would most likely cover the criminal aspect of taking possession of another’s property, consequential damages would be included on the civil side (and that’s assuming that the truck driver didn’t yell “wait, Superman! THIS steel’s on its way to shore up the orphanage and children’s hospital that are in danger of collapsing!” or otherwise inform him that, although the necessity for taking possession of the steel was high for Supes, it was higher for the lawful owner.

      • Superman didn’t need the steel to fight the fire, he needed it to prevent the collapse of the building. Unless there’s something else to the story, it sounds more like a private necessity to me.

        As I understand it he was worried that the collapse could restart the fire.

        You can’t self-help repossess your own property if doing so causes a disturbance of the peace, so I’m pretty sure you can’t take possession of another’s property with a disturbance of the peace even under the color of necessity.

        That depends. If the necessity is such that the criminal defense of necessity would also excuse the disturbance of the peace, then I don’t think there would be a problem with invoking the tort defense of necessity to excuse the conversion.

      • @James Pollock:
        “that’s assuming that the truck driver didn’t yell “wait, Superman! THIS steel’s on its way to shore up the orphanage and children’s hospital that are in danger of collapsing!” or otherwise inform him that, although the necessity for taking possession of the steel was high for Supes, it was higher for the lawful owner.”

        It’s entirely possible the driver wouldn’t know. If he was simply dispatched with orders to make all possible haste to the destination, as the owners didn’t expect sudden theft by superhero… I’m just saying, I deal with trucking companies quite often, both nationwide and of the local, point-to-point variety, and we don’t tell them a darn thing about the intended use of the material.

      • James Pollock

        The point is that Superman doesn’t know where the steel is going, either. He’s made a judgment that a random truckload of steel is needed to save this building, and there is a random truckload of steel. Necessity. BUT, if that truckload of steel is needed someplace else with a greater necessity, AND Superman knows this, it could affect the viability of his necessity defense.

  5. “As discussed above, Superman probably has a good defense to both criminal charges and tort claims, but that doesn’t mean insurance will cover the loss.”

    Superman has no valid defense to a tort claim for the cost of the steel bars. Necessity is a defense to the tort of trespass, whether to lands or to chattel, but you still have to pay for actual damages caused by your trespass. The classic example is harboring a boat in a storm; no liability for trespass, but you would be liable for damage to the dock caused by your unauthorized mooring. Here, Superman would have a defense if he merely committed trespass to chattel (taking property without permission) and then returned it without damage. But here he damaged the steel bars by welding them to the building. He would be liable for those damages regardless of the necessity of his actions.

    • That’s true of private necessity but not public necessity, at least in some jurisdictions. Since Superman was responding to a public emergency (a very serious fire), public necessity may well apply.

  6. What I find odd is that Superman even thought of it as something an insurance company would have to pay for. I figure that as a rule, when Superman does damage in the course of crimefighting, he later either rebuilds/restores the damaged property personally (he could probably manufacture a new set of steel bars pretty easily) or repays the equivalent cost by crushing coal into diamonds, mining for gold, etc.

    Then again, if Superman made too many diamonds or mined too much gold, it might depress the prices of those commodities by making them less scarce. Then again, diamonds hand-made by Superman might be considered to have a special value all their own.

    • You’re right: that is a bit weird. I’d venture to try to explain it by the context. Superman is deliberately trying to connect with the “common man,” going so far as to use a cell phone despite the fact that he 1) has super hearing so he doesn’t really need one, and 2) has access to JLA communicators which make iPhones look like rotary phones.

      But it is kind of out of character for him. Further, the whole premise of the story is an investigation into why Superman doesn’t help out in more mundane tasks. Or maybe it’s asking “Must there be a Superman?” It sort of changes half way through, and neither question is satisfactorily answered. The series was not universally beloved.

      • James Pollock

        Don’t Lois and Jimmy have wristwatches with Kryptonian technology for talking to/summoning Superman? Why switch to cell service which (presumably) has dead spots in several of the locations Supes frequents?

      • Cell phones would also be useful for ease of conversation as well as for purposes of a disguise. He obviously can hear people but he can’t speak to them and they can’t hear what he’s saying. Also people would start to wonder why Clark Kent hasn’t gotten a fairly universal device over the past ten years.

        As for riches, Superman would have to spend quite some time increasing the supply to significantly lower the price of many valuable metals and stones especially since I understand diamonds are actually artificially given a high price*.

        *Though the fact that Superman can do this might have an impact on some industries, an additional factor they might have to figure out for stock prices.

      • The problem with Superman communicating with super-hearing is that sound travels at 721 mph at sea level. So even if he could hear Lois speaking in Metropolis (you decide how far away it is), there would be a significant delay while the sound traveled across the country. Based on his location, it could take two-three hours or more. That also presupposes that the sound is not diffused by objects or obliterated by other noise.

        Yes, this means Supes can’t hear people across the country and super-speed there in time to save them. He couldn’t even always stop bullets aimed at others, even if he’s close by — by the time the sound reached his ears, and depending on the weapon used, the bullet’s probably already in the target.

        This is a poorly conceived storyline, but not because of the cell phone. That actually makes sense.

      • @Bryan L:

        The problem of Superman’s superhearing and the speed of sound, diffusion, etc. has bothered me for awhile. I remember seeing one particularly egregious example, wherein Superman was sitting in orbit around the sun when he heard someone on Earth screaming (at which point he flew there at superspeed to save the day). 93 million miles away. Even light takes over eight minutes to make the trip, and we can’t calculate the time mere sound would take, as there isn’t a medium through which it can be transmitted.

        Point being, I can’t recall a single meaningful instance where the simple problem of sound being slow was handled correctly in a Superman story, so I resort to handling it like how his applications of superstrength don’t work with materials science – it’s magic.

      • @ CTrees– I’d be fine with magic if they’d just say it and stick with it. Or better yet, simply label Supes’ more ridiculous abilities as psychic (Clairvoyance, telekinesis, etc. John Byrne alluded to this but it’s all been retconned away now.) I just loathe it when he hears faster than sound can travel. Drives me nuts. I’ll drop this now. It’s not really the point of this site.

      • Super hearing could also imply the ability to perceive the generation of kinetic energy into patterend waveforms (sound) by an alteration in the total energy of a system, i.e., energy being added to that system, which would not necessarily be limited to the sound wave’s speed itself. For example, propagation of gravitic disturbance through space/time by a supermassive event (supernova collapse) travels at an apparent velocity many times that of the speed of light in theory, since it’s not actually energy or matter that’s traveling, just a pereption of effects. It’s an effect of energy on matter or systms observation. Kind of a stretch, but I got to throw out my geeky shtuff, so there. Since hearing or perceiving is bound by observational differences, not necessarily by the energy of the originating event itself, his super hearing could be a (ridiculously) refined sense of the aggregate state of his system.

      • Philo Pharynx

        @CLH – an explanation that could only work in comic books physics.

  7. Assuming the plant wasn’t needed more immediate services elsewhere (eg providing power), would a better legal option be for Superman to move all the people out of the plant? Lives saves and no theft needed!

    • He already did that. He was worried about the property damage.

      • Is Superman a qualified construction engineer? What if an inspection shows that the damage wasn’t a problem that Superman thought it was? A wall might have falled down or something?
        Is Superman covered because he thought it was bad?
        [Fine, he has had experience with buildings falling, but as an idea...]

      • Ryan Davidson

        Necessity turns on reasonably perceived risk. The question is whether an ordinary person in Superman’s position would have done what Superman did. Granted, Superman isn’t an ordinary person, but even moving him into the category of “expert,” the question remains whether a person of Superman’s age and experience would have done what Superman did. That’s probably going to be tough for a jury to answer, but Superman isn’t known to be a structural engineer or related expert, so he isn’t going to be that different from an ordinary person in this particular instance.

        Even if an after-the-fact inspection shows that Superman was wrong, the question is still whether he reasonably perceived a public emergency in the moment.

      • James Pollock

        Superman constructed the Fortress of Solitude, and has been depicted countless times welding with his heat vision (and, presumably, doing non-destructive inspection of the welds with his X-ray vision). I’d guess that his work is workman-like enough to pass inspection. He’s not the engineer that, say, Batman is, but he’s good enough…

      • Superman does have a rather extensive amount of experience dealing with buildings being burned, blown up, smashed into and otherwise damaged in such a way that they could reasonably present a danger to the general public. He might not be a legal ‘expert’ but I would presume that the courts would give him some leeway.

      • James Pollock

        The jury instruction would be interesting: “The question of fact before you today is whether a reasonable man, possessed of invulnerability, flight, super strength, and the ability to weld steel just by looking at it, would have thought it necessary to…”

      • Re: Superman’s experience/qualifications.

        Superman’s mental abilities are, if anything, *less* consistent than his physical ones. He’s never been portrayed as anything less than the mental equivalent of a reasonably bright human being, and often he’s referred to as being a genius or having a “Super-brain.”

        However, there is a built-in conundrum which makes it very hard to accurately assess his mental abilities: his physical powers are so overwhelming that if he really also had supergenius level intelligence, and especially if his mind worked as fast as his body can compared to a human being, he’d be omnipotent for all practical purposes. (My favorite example: Doomsday. Doomsday can’t fly and he’s subject to the effects of gravity. Superman need only grapple him and throw him into Jupiter. He will sink to the core – it won’t kill him, he’s indestructible, remember? – and stay there until Superman et all figure out a way to deal with him. BUT NO. They have to have a big brawl and wreck half the county and Superman has to die. Idiotic.)

        Therefore, as much as his physical powers do, his mental powers change in scope and level as suits the dramatic needs of the current story. I doubt it would ever occur to one of the writers that Superman wasn’t qualified to determine the structural integrity of a building, as that doesn’t seem very hard to most people. (It’s harder than it looks, obviously.)

      • It is entirely possible that material science and structural engineering were among the topics Superman was taught as a baby as he hurtled through space in his escape crystal thing.

  8. Just so I am clear about this, we are talking about steel girders, right? My initial reaction was that Superman’s use of steel bars would not be structurally sound and that as long as the building was empty he should just let it collapse. If, upon inspection, the building would be found to be structurally sound that all is well and good but if the building is not structurally sound it would have to be torn down anyway.

    • Not sure that follows. Superman was pretty explicitly just doing a patch job. The building is going to need to be repaired. But if he hadn’t shored it up with the steel–I’m not going to get precise about what it was, because the comic doesn’t really admit such analysis–it would have collapsed.

      It’s sort of like using a tarp to patch a hole in a roof. Is that a permanent fix? No. Is it better than leaving the rain come in? Yes. Here, his patch job isn’t permanent, but it’s better than letting the whole building collapse.

      • James Pollock

        During construction, it’s not unusual to see all kind of makeshift work. For example, during the construction of a frame house, the walls are framed flat on the ground and then lifted into place. It’s not unusual to see temporary supports holding up a couple of walls while the rest are built, lifted into place, made plumb and square, etc. If the end of the workday, if they’re in the middle of this work, they leave it overnight.

        And the art of domolition is, if anything, harder than the art of construction for large buildings, particularly in crowded environs. An uncontrolled collapse creates dangers that can be better controlled in a controlled demolition.

      • Ryan Davidson

        If nothing else, he also saved the equipment in the building. In a lot of factories, the equipment can be worth as much or more as the actual structure, which is frequently little more than walls and a roof.

  9. Would anything change if, during the repair work, they were able to remove the steel bars and return them to the steel company essentually undamaged? I’ve not read the comic but I could certainly see I-beams being re-useable if they were simply being used to prop up a damaged wall. Would that change the damage analysis if Superman was ordered to pay for the beams?

  10. In response to the question of public neccesity vs private: This is a chemical plant. It’s destruction could cause the release of toxic chemicals. (Over and above those already relased by the fire) There is the potential for thousands of deaths, and if chemicals get into the environment, they could have health effects for tens of thousands of people. A truckload of beams is a small price to pay.

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