Monthly Archives: April 2012

Harvey Birdman, Attorney At Law (Ep. 1-4)

Harvey Birdman, Attorney At Law is one of the original Adult Swim programs, similar in style and concept to the truly classic Spage Ghost Coast to Coast and produced by the same company. But instead of re-purposing old Hanna Barbera cartoons to make a surrealistic talk show, they’re re-purposing old Hanna Barbera cartoons to make a surrealistic legal sitcom of sorts.  In this post we’re talking about the first four episodes of the first season, which are available on DVD. Continue reading

The Day Superman Broke the Law?

Fantom Comics has just launched a new site for comics commentary and criticism called Subculture for the Cultured, and we’re proud to announce that we will be contributing a monthly column alongside EcocomicsThe Patron Saint of Superheroes, and many other fantastic blogs.  Our inaugural column discusses a classic Silver Age Superman story, “The Day Superman Broke the Law” (reprinted in Showcase Presents: Superman, Vol. 3)  After the surprisingly strong reader reaction to our recent suggestion that Peter Parker may not have been entirely on the level in his dealings with the Daily Bugle, we think this one will go over a bit better.  So head over to SftC and check it out!

Time Travel, Resurrection, and Double Jeopardy

This is an issue raised tangentially by The Kingdom, a sort of spin-off storyline from Kingdom Come. The basic premise is that a villain kills Superman, then goes back in time and kills him again. And does this at more-or-less regular intervals back down the timestream.

The set up suggested at least a possible interaction with double jeopardy, prohibited by the Fifth Amendment, in that we’re looking at a situation where a defendant could potentially be charged more than once for killing the same person. On that note, we’re also going to look at the possibility of a defendant killing someone, the victim rising from the dead, and the defendant killing them again, as it seems factually similar. Continue reading

Peter Parker, Con Artist?

The inspiration for today’s post comes from Greg, who asks:

During the Civil War storyline, for a brief time Peter Parker “outed” himself as Spider-Man. … J. Jonah Jameson wanted to sue Peter for fraud because he sold pictures of Spider-Man to the Daily Bugle under  what [Jameson] claimed were false pretenses. My question is, would that hold any water?

The facts for this question come from Amazing Spider-Man #533 (which you can buy reprinted in The Amazing Spider-Man: Civil War).  Specifically, a lawyer for the Bugle tells Parker that the Bugle is suing him for “misrepresentation, fraud, breach of contract and several other related charges” and they are seeking both compensatory and punitive damages of at least five million dollars.  So, how worried should Parker be about this?  Pretty worried, in our estimation.  Let’s take a look at each charge in turn.

(Before we get started, we’ll mention that there would have to have been a contract between Parker and the Bugle for the photographs because, as an independent contractor, Parker owned the copyright in his photos and would need to license or sell the copyright to the Bugle via a contract before they could be printed.  See this post for more on that.)

I. Misrepresentation

Because both breach of contract and fraud are also listed, we think that misrepresentation is being used in the contract law sense rather than the tort law sense.  In the contract law sense, misrepresentation is also known as fraud in the inducement (i.e. a misrepresentation made in order to induce the other party to enter into a contract).  This should not be confused with the tort of fraud, which we’ll get to shortly.

In New York, “To recover under a theory of fraudulent inducement, the plaintiff must prove: (1) misrepresentation of a material fact; (2) falsity of the representation; (3) scienter; (4) reasonable reliance; and (5) damages.” Creative Waste Mgmt., Inc. v. Capitol Env. Servs., Inc., 429 F.Supp.2d 582, 607 (S.D.N.Y. 2006).  “Scienter” is a fancy legal word for “knowledge,” and in this case means the defendant has to make the misrepresentation knowingly.

So, has the Bugle likely got a case for fraud in the inducement here?  Let’s go through the elements.

(1) Misrepresentation of a material fact.

Right off the bat we run into a small snag: did Parker ever explicitly claim that the photos were unstaged photos of a different person?  Maybe, maybe not.  But even if he didn’t, his silence may be enough.

“[W]hen dealing with a claim of fraud based on material omissions, it is settled that a duty to disclose arises only when one party has information that the other party is entitled to know because of a fiduciary or other similar relation of trust and confidence between them.” Creative, 429 F.Supp.2d at 607.  Such a relation can be imputed by the “special facts doctrine,” under which “the courts impose a duty on a party with superior knowledge of essential facts to disclose those facts where nondisclosure would make the transaction inherently unfair. For this doctrine to be applicable, the plaintiff must prove that (1) one party has superior knowledge of certain information; (2) that information is not readily available to the other party; and (3) the first party knows that the second party is acting on the basis of mistaken knowledge.” Id.

Clearly, Parker had superior knowledge of Spider-Man’s identity.  Jameson had no clue who Spider-Man was and certainly didn’t suspect Parker.  The information was not readily available, as demonstrated by the fact that quite a few people, Jameson included, had tried and failed to determine Spider-Man’s identity.  And it can reasonably be assumed that Parker knew that Jameson wouldn’t have bought the photos if he knew they were staged and being sold to him by Spider-Man.

So Parker’s misrepresentation by omission will suffice.  It’s also definitely a material misrepresentation (i.e. it would have made a difference in whether a contract was agreed to) because Jameson would not have bought the photos if he knew the truth.

(2) falsity of the representation

This one is pretty easy.  At the very least the photos were falsely presented as genuine news photographs and not a semi-staged photo-op for Spider-Man.

(3) scienter

No question here; Parker definitely knew he wasn’t being honest about the photographs.

(4) reasonable reliance

Another easy one.  It was entirely reasonable for Jameson to believe that Parker was not Spider-Man and that the photos were genuine.  Unlike some superheroes (*cough* Superman *cough*), Spider-Man does a believable job of keeping his identity secret, and there was nothing incredible about the photos.

(5) damages

This one is also straightforward.  The Bugle paid Parker money for the photos, per the contract, and so there are damages.

So that’s misrepresentation established.  What does it get the Bugle?  The likely result is rescission of the contract and restitution of any money paid to Parker for the photographs.  So the Bugle gets its money back and no longer owes Parker anything under the contract.

II. Breach of Contract

This one is a little harder to write about, since we don’t know what the terms of the contract were.  It’s extremely likely, however, that the contract included a representations and warranties section in which Parker affirmatively represented that the photos were genuine, unmodified, unstaged, etc.  By trying to pass off the (effectively) staged photos, Parker would have breached the contract.

The practical upshot of the breach of contract claim is the remedy.  Breach of contract remedies are a little complicated, but the main damages here will be the loss of value due to lost reputation.  What it definitely doesn’t get the Bugle is punitive damages, as damages in contract cases are almost always compensatory. Even in cases of a fraudulent breach of contract, punitive damages are not available unless the fraud was “malicious, vindictive or morally reprehensible [demonstrating the] intent of wanton and reckless behavior.” Reinah Development Corp. v. Kaaterskill Hotel Corp., 59 N.Y.2d 482, 487 (1983).  Parker was not trying to scam the Bugle, so we don’t think his conduct rises to that level.

Because the damage due to lost reputation is so hard to measure, it’s possible that Parker’s contract with the Bugle included a liquidated damages clause.  A liquidated damages clause lets the parties agree to a particular amount of damages in advance.  Parker could thus be on the hook for whatever that amount is times the number of photos the Bugle printed (or, less likely, the number it purchased).

III. Fraud

“Generally, in a claim for fraudulent misrepresentation, a plaintiff must allege a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 178 (2011).  As you can see, that’s remarkably similar to the elements of fraud in the inducement.  The difference in this case is in the remedy.  Whereas the remedy for fraud in the inducement is to undo the contract, the remedy for tortious fraud covers all of the damages stemming from the Bugle‘s reliance on Parker’s misrepresentations and omissions.

But wait a minute, that sounds a lot like the breach of contract damages.  And that’s right: the damages for fraud would be essentially identical to the damages for breaching the representations clause of the contract.  But you don’t get to recover twice for the same injury, so even if the Bugle proved both claims it wouldn’t get twice as much money.  So why bother suing for both?  First, because it might not be able to prove both claims and second, because the contract might not include a representations section (though this is unlikely)

IV. Conclusion

All told, Parker is looking at a pretty serious lawsuit.  As well he should, since passing off staged or manipulated photographs is a serious journalistic no-no, even if it’s done for the best of reasons.

Snakes on a Plane

Snakes on a Plane is a terrible, terrible movie (see for yourself, if you don’t believe us).

It’s also bad on the law.

The premise of the movie is that Samuel L. Jackson (who basically plays the movie version of himself, so we’re going to call him Jackson instead of “Neville Flynn”) is escorting a witness from Honolulu to LA to testify in a murder trial there. This is weird in and of itself, but so’s the way they travel: the FBI commandeers the first class cabin of a commercial flight. This is all kinds of wrong. Continue reading

Awake and Doctor-Patient Confidentiality

Today’s post was inspired by a question from Andrew, who wrote about the television show Awake: “In the most recent episode, [the main character, a police officer] is involved in a hostage situation, and a psychiatrist is in the room, and talks about the hostage taker’s mental health in detail. Given the circumstances, was that legal?”

This is a pretty complicated question.  First, we have to determine which law applies, and there are several to choose from.  Often when people talk about doctor-patient confidentiality they are actually referring to the physician-patient privilege, which is a rule of evidence in some jurisdictions, including California.  Cal. Evid. Code § 994.  Since this incident didn’t involve the psychiatrist testifying in court, it doesn’t apply.

Apart from the evidentiary privilege, there is also a duty of confidentiality, which is both an ethical and a legal duty.  At the state level, California has the Confidentiality of Medical Information Act, and at the federal level there is the Health Insurance Portability and Accountability Act, better known as HIPAA.  Both of these apply in this case, but there are exceptions to both.

California was one of the first states to recognize that therapists have an affirmative duty to warn others when a patient may have violent intentions.  Tarasoff v. Regents of the Univ. of Cal., 17 Cal.3d 425 (1976).  The Tarasoff case is fairly famous, and is frequently discussed in law school torts casebooks.  Notably, however, the Tarasoff case was decided before the CMIA was passed, and the CMIA does not contain an exception for protecting others from a violent patient.  This left therapists in a tricky position, relying on the exception in the evidentiary privilege to find an implicit exception in the duty of confidentiality.

This recently changed with the passage of AB 1178 in 2007, which amended the CMIA to allow disclosure of medical information

consistent with applicable law and standards of ethical conduct, by a psychotherapist … if the psychotherapist, in good faith, believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.

Cal. Civ. Code § 56.10(c)(19).  As it happens, this exception is taken almost verbatim from a similar exception in HIPAA.  From 45 C.F.R. § 164.512(j):

A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose protected health information, if the covered entity, in good faith, believes the use or disclosure:
(i)(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and
(B) Is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat;

I didn’t do a detailed review of the case law, but I suspect disclosing a patient’s mental health information to a police officer handling a hostage situation probably counts.

So, to sum up, the exceptions to the state and federal duties of confidentiality allow the psychiatrist to disclose the information, and the Tarasoff case imposes a duty to do so.  It looks the psychiatrist was in the clear.

Superhero Runaways

Today’s post was inspired by a question from Frank, who asks “Cloak and Dagger are teenage runaways. If they could catch them, could the police forcibly separate them, incarcerate them, remand them to their parents and/or institutionalize them as wards of the state?”

Cloak and Dagger aren’t the only examples.  There are several other runaway superheroes, including, naturally, the Runaways.

This is a pretty interesting question.  I didn’t know the first thing about the law of runaway children, so I had to do a bit of research.  I decided to focus on Cloak and Dagger, since the Runaways all fled (and ultimately defeated) parents who were supervillains, whereas Cloak and Dagger were more ordinary disaffected teenagers.  As it happens, Cloak and Dagger both ran away to New York City, so we’ll primarily look at the law of New York.  Cloak is originally from Boston, and Dagger is from Ohio, which is also relevant.

I. What Exactly are Runaways?

In New York a runaway is a “child under the age of eighteen who has run away from home without just cause.”  N.Y. Fam. Ct. Act § 718(a).  A police officer may return a runaway to the child’s parent or another legally responsible person or may take the child to a state certified facility. N.Y. Fam. Ct. Act § 718(a), (b).  This requires only the police officer’s reasonable belief that the child is a runaway.  Id.

The cases and commentaries don’t really explain what “just cause” would be, but presumably fleeing abuse, neglect, or a similarly dangerous situation would be acceptable.  Thus, the Runaways might not actually have been runaways, at least under New York law.

Cloak and Dagger don’t seem to have that excuse, however.  Cloak ran away out of guilt over the death of a friend, and Dagger ran away because she felt her mother was too busy for her.  Not great situations, but probably not enough to justify running away from home, either.

II. So Now What?

If Cloak and Dagger were determined to be runaways, they could be returned to their parents or to a state facility.  But their parents don’t live in New York.  A state government generally has no authority outside of its borders, so how could the New York authorities legally transport them back to Massachusetts and Ohio, respectively?  Enter the Interstate Compact for Juveniles.

The Compact allows the child’s home state (called the “requisitioning state”) to request the child’s return from the state the child ran away to (called the “asylum state”).  The requisition includes “the name and age of the juvenile, a determination that the juvenile has run away without consent of a parent or legal guardian, and that it is in the best interest and for the protection of the juvenile to return to the requisitioning state.” 2 Children & the Law: Rights and Obligations § 8:53.

Nearly all states have adopted the Compact, including OhioMassachusetts, and New York.  Note that the current version of the New York law is set to expire in 2013 and will be replaced with the most recent version of the Compact.  See 2011 Sess. Law News of N.Y. Ch. 29.

So, perhaps unsurprisingly, the result is that both Cloak and Dagger could be returned to their home states.  This is separate from the issue of juvenile delinquency, however, and actually involves a different age standard.  Cloak and Dagger have engaged in a fair amount of vigilantism over the years, often involving the deaths of supervillains and more ordinary criminals.  In New York, for purposes of juvenile delinquency, juveniles are generally children over the age of 7 and under the age of 16.  N.Y. Fam. Ct. Act § 301.2.  When Cloak and Dagger ran away they were 17 and 16, respectively, which means they would likely be tried as adults.  I’m not too familiar with their exploits, but from what I’ve read they could be looking at some serious jail time.

III. Conclusion

As runaways, Cloak and Dagger could either be returned to their parents in Massachusetts and Ohio or placed in a state-certified facility in New York.  But as potential criminal defendants, they would likely be tried as adults.  In any case, they would almost certainly be separated.  The only reason they might not be is that consuming the energy produced by Dagger’s superpower is quite possibly the only legal way for Cloak to stay alive.

Castle: 47 Seconds

In the March 26, 2012 episode of Castle, “47 Seconds,” the police use a rather snazzy bit of technology to identify their suspect: a recording of real-time GPS data tracking all cellphones. We already discussed GPS tracking in reference to Batman: Noel, but this seems to be another situation which would implicate U.S. v. Jones, the recent Supreme Court case dealing with this sort of thing and its interaction with the Fourth Amendment. Continue reading

Superheroes and Jury Duty

Today’s post was inspired by an email from Marcus, who asks “what would happen if a superhero was summoned for jury service in his/her secret identity, and the case turned out to be one where the character had been involved as a crimefighter and might even be expected to appear as a witness?”

As Marcus points out, this is more of a problem for some superheroes than others.  For example, Peter Parker often photographs Spider-Man in action, so he couldn’t serve as a juror in such a case, since he would be a potential witness.  But what about a case he didn’t cover as a photographer?  And what about other superheroes like Batman who generally maintain significant distance from their secret identities?  To set the scene here, let’s talk a little about jury trials and the jury selection process.

I. Jury Trials

Unlike most of the world, the United States is big on jury trials for both criminal and civil cases.  The Sixth Amendment gives criminal defendants the right to a trial by jury, though not all criminal charges qualify.  “Petty offenses” (i.e. misdemeanors with a maximum penalty of six months imprisonment) don’t qualify for a jury, at least under the federal Constitution.  Duncan v. Louisiana, 391 U.S. 145 (1968).  So superheroes who bust only very small time crooks wouldn’t have so much to worry about, but most superheroes go after serious criminals.

A defendant could also waive his or her right to a jury trial, but most criminal defendants don’t do that.  That is, they often waive their right to a trial entirely by a plea bargain, but if they do go to trial they usually go with a jury rather than a bench trial conducted by the judge alone.

The Seventh Amendment gives the right to a jury trial in civil cases, but that right is more limited than the Sixth Amendment right.

II. The Jury Selection Process

So, now that a jury has been called for, how do they get picked?  The answer is: it’s complicated and varies from jurisdiction to jurisdiction, but most states are modeled after the federal system.  Under the Federal Jury Selection and Service Act of 1968, each district court must develop a jury selection plan, which must

(1) either establish a jury commission (consisting of one citizen and the clerk of the court) or authorize the clerk to manage the jury selection process;

(2) specify whether the names of prospective jurors are to be selected from voter registration lists or the lists of actual voters of the political subdivisions within the district or division, and prescribe other sources when necessary to achieve the objectives stated above; 

(3) specify procedures for selecting names from those sources designed to ensure that each political subdivision is substantially proportionally represented in the master jury wheel;

(4) provide for a master jury wheel into which the names of at least one-half of one per cent of the names on the source lists are placed;

(5) specify those groups of persons or occupational classes whose members shall on individual request be excused from jury service because such service would entail undue hardship or extreme inconvenience;

(6) specify that active members of the armed forces, members of fire or police departments, and members of the executive, legislative or judicial branches of government who are actively engaged in the performance of official duties are barred from jury service on the ground that they are exempt;

(7) fix the distance beyond which jurors shall on individual request be excused from jury service on the ground of undue hardship in traveling to where court is held;

(8) fix the time when the names drawn from the jury wheel shall be disclosed to the parties and to the public; and

(9) specify the procedure for assigning persons whose names have been drawn from the jury wheel to jury panels.

Wayne R. LaFave et al., 6 Crim. Proc. § 22.2(a) (3d ed.).

Already we can see a couple of potential ways out for our superheroes.  First, they can decide not to register to vote, although that’s not very heroic, and it may not help if the district supplements the jury rolls with driver’s license records, utility company lists, and other sources.

Alternatively, superheroes could live and register to vote in a different district than the one they fight crime in.  For example, supposing Gotham is actually New York City, then if Wayne Manor were located on eastern Long Island then it would be in the Eastern District of New York rather than the Southern District, which is where the city is (here’s a map).  Thus, Bruce Wayne wouldn’t get called for jury duty in the Southern District, and presumably there are a lot fewer supervillains on the eastern half of Long Island than in the city, so the odds of him getting called up for a supervillain case in the Eastern District are slim. Alternatively, if Gotham is in New Jersey, then Wayne Manor could be in New York, or vice versa.  A similar approach can work for state courts.

Of course, this depends on cooperative geography and having enough money and resources to “commute to work,” so to speak.  Another possibility is to have an exempt occupation.  The federal courts exempt active duty armed forces, professional fire and police departments, and full-time public officers of federal, state, and local governments.  State jury exemptions vary, but most are similar to the federal ones.  Historically there were exemptions for attorneys, doctors, and other occupations, but those have mostly been done away with, which eliminates most of the easy outs for superheroes.  Most superheroes can’t juggle being a superhero with being an active member of the armed forces, a full-time cop or firefighter, or a full-time public officer, so this route probably won’t work.

As a last resort, a superhero (or in this case more likely a super-antihero) could intentionally incur a felony conviction.  Most states and the federal government permanently exclude convicted felons from serving on juries.  Obviously this is a drastic step, and very few superheroes would do such a thing just to avoid the possibility of jury duty, but some superheroes may have secret identities that have run afoul of the law already for other reasons, and they may not have to worry about jury duty, depending on where they live.  For the record, we do not recommend this approach, even to fictional characters.

But assuming our superhero hasn’t avoided being selected in the first place, what do they do once they’re called up?

III. Summoned for Jury Duty.  Now What?

At this point, we’re afraid there isn’t much to be done.  The superhero could try to plead hardship or inconvenience (e.g. by claiming that they are needed at work or by feigning illness), but that often results in a delay rather than an exception.  They could refuse to show up, but that’s a good way to get fined or worse, which hardly seems very heroic.

They do have one last way out, and that’s the voir dire process.  Voir dire is the process by which the parties (e.g. the prosecution and the defense) ask prospective jurors questions and, optionally, eliminate them.  Each side gets a certain number of “peremptory” challenges, which are prospective jurors they can dismiss for whatever reason they like.  After that they can challenge an unlimited number of prospective jurors “for cause,” but each challenge for cause requires the assent of the judge.  Exactly what constitutes adequate grounds is beyond the scope of this post, but it’s usually cases of serious bias (e.g. a belief that the defendant is guilty until proven innocent) or a refusal to follow the law (e.g. would refuse to find the defendant guilty even if the case was proven beyond a reasonable doubt).

If our superhero has an honestly held belief that might get them tossed out, then that could work.  The problem is that most superheroes clearly believe in the justice system, at least in theory.  They could lie, but again that doesn’t seem very heroic, and it’s a crime anyway, since prospective jurors are put under oath.  One possibility is to raise the point that they don’t believe that the police are capable of handling crime effectively.  This is clearly true, or else why would they be a superhero?  And it may show sufficient bias against the police that the superhero would get tossed out of the jury pool.

IV. Conclusion

Avoiding jury duty is difficult, even for a superhero.  Some may be able to avoid it by separating where they live and where they “work,” but those who do get called up may find it very tricky to get out of it.  Faced with a situation in which their secret identity may be called as a witness in the same case, feigning illness might be the least bad option.  The result would probably be a delay rather than an exception, but hopefully lightning wouldn’t strike twice.

Superheroes and the Duty to Rescue

We’ve talked before about the duty to rescue, but there are a couple of facets of the issue that we haven’t addressed.  Plus, this issue came up (indirectly) in the most recent episode of Grimm, and we’ll talk about that, too.  First, a brief summary of our prior post.

I. The Story So Far

In general there is no duty to rescue or aid others, so superheroes aren’t on the hook (except perhaps morally) if they decide not to rescue someone, even if they could do so very easily.  However, once a rescue is attempted, a superhero must carry out the rescue with ordinary care.  Similarly, abandoning the rescue partway through may leave the superhero liable.  In short, they don’t have to rescue anybody, but if they try they must do so with reasonable care and they have to follow through.

There is, however, an exception for people in “special relationships.”  For example, parents have an affirmative duty to rescue their children.  However, it is very, very rare that the police or other government workers are considered to have such a special relationship with the victim of a crime or other endangered person, so even superheroes who work with or for the government will rarely be treated differently than if they were working as a private citizen.

Finally, at least five states (Massachusetts, Minnesota, Rhode Island, Wisconsin, and Vermont) have passed laws overruling the common law rule in some circumstances.  For example, 12 V.S.A. § 519(a) provides “A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.” (emphasis added).  Not only is this a fairly narrow exception to the common law rule, but the maximum penalty for violating it is a whopping $100 fine.  So while Vermont has pushed back against the common law rule, it hasn’t put a lot of weight behind it.  The other state laws have a similarly narrow scope and enforcement mechanism.

Note, however, that “without danger or peril to himself” part.  A lot of superheroes might get caught by that in situations where ordinary people would have an excuse.  There isn’t much that poses danger or peril to Superman, for example, so unless he owes an important duty to someone else or the imperiled person is already being assisted, Superman might find himself quite busy in Vermont.  This is especially true given that Vermont’s law, unlike the others, doesn’t require the rescuer to be at the scene, merely to “know that another is exposed to grave physical harm.”  Given Superman’s superhearing and other heightened senses, he is probably aware of most such situations in Vermont most of the time.  In fact, Superman should probably just stay out of Vermont entirely.

So those are the basics.  But what about people that are injured during a fight between a superhero and a supervillain?  Does the superhero owe them a duty of rescue or aid?  The answer is…maybe.

II. Injured Bystanders and the Duty to Rescue

The long-held common law rule was that there was a duty to rescue if one was legally responsible for the injury.  “If the actor by his tortious conduct has caused such bodily harm to another as to make him helpless, the actor is under a duty to use reasonable care to prevent any further harm which the actor then realizes or should realize as threatening the other.”  Restatement (First) of Torts § 322 (emphasis added).  Normally, however, superheroes are acting under a legal privilege that allows them to avoid responsibility for a lot of bystander injuries.

For example, suppose Batman throws a gas grenade in order to stop some criminals who are about to attack a civilian, but the wind shifts and the gas causes an injury to a bystander.  Batman would not be liable for that injury unless he realized or should have realized that the gas grenades created an unreasonable risk of causing such harm.  Restatement (Second) of Torts § 75.  No legal responsibility, no duty to rescue.

But the common law has developed, and now many jurisdictions observe a duty to rescue even when the injury was caused non-tortiously.  “If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.”  Restatement (Second) of Torts § 322 (emphasis added).

So going back to our example: under this new standard, Batman would have a duty of reasonable care to prevent further harm to the helpless bystander even though he was legally privileged to cause the harm in the first place.  Of course, “reasonable care” might mean “very little care” if there are more pressing matters at hand, such as a fleeing supervillain to catch or another group of henchmen about to attack other bystanders.  But if there is no other danger, then Batman may be obligated to at least call 911 or take the injured bystander to the hospital.

This rule means that superheroes would have to be very careful to avoid harm to bystanders, lest they be on the hook for preventing further harm, whether from themselves or from others.

III. Grimm and the Duty to Rescue

On the most recent episode of Grimm  (“Island of Dreams”), Nick’s co-worker Sergeant Wu is poisoned by a magical cookie meant for someone else.  Rather than take Wu to the hospital, Nick leaves him in the care of a Fuchsbau* named Rosalee who remembers seeing her father treat a similar case of poisoning several years ago.  As it happens, she (mostly) successfully treats Wu, who seems mostly unharmed.

* As an aside: the mostly nonsensical, horribly pronounced pseudo-German on that show is really irritating.  Hire a consultant, NBC, seriously.

Here, Rosalee (and to a lesser extent Monroe, who assists her) are in a bit of a bind.  What is reasonable in this situation?  Taking Wu to a regular hospital?  Rosalee assures Nick that the doctors won’t know how to treat the poisoning.  But the alternative doesn’t seem much better.  Rosalee’s knowledge is second-hand at best, and she’s not a trained healthcare worker, even among the creatures of Grimm.  And, of course, if things had gone badly, none of them would have been able to explain what had happened.

Initially, Nick himself doesn’t seem to be in any danger of liability, since having Rosalee treat Wu wasn’t Nick’s idea, and in fact he wanted to take Wu to a hospital at first.  But after Wu recovers somewhat, he helps Rosalee and Monroe take Wu to his house so that he can wake up in a familiar environment.  At that point, Nick became party to the rescue and could be liable if a reasonable person would have taken Wu to the hospital at that point.  And that means a reasonable person who knew only what most people know about the world (i.e., nothing about magical cookies or Grimms).

IV. Conclusion

Superheroes need to know the ins and outs of the duty to rescue and its many exceptions and caveats.  In some states superheroes may even have a limited affirmative duty to rescue others, and in Vermont at least that could be a real problem.  Those $100 fines can add up, and failure to pay them could result in a contempt charge.  In Superman’s case the bad PR would probably be worse than the fine or even the contempt charge, but it’s still something to watch out for.