Nobody Foresees the Lizard

We received a great question about The Amazing Spider-Man and liability for the damage done by the villain.  Spoilers below!

Jonathan writes:

The question: who is responsible for the damage done by the Lizard? Is it Parker, Connors, Oscorp or a combination of all of them?

The Lizard wouldn’t exist without Peter’s formula. This was his dad’s, presumably developed while working for Oscorp. Connors is shown working with Peter in the Oscorp lab, though Peter is not an Oscorp employee. Oscorp was pushing Connors to go to human trials against (Connors’s) expert advice.

This is a great question because it touches on a lot of issues in both torts and criminal law, though we’ll concentrate on the tort issues.  We’ll break it down into a few different parts, beginning with the most obvious candidate, Connors himself.  Since the movie is set in New York, we can use New York law.

I. Dr. Connors

Dr. Connors seems like the most likely candidate for two reasons: first, he (as the Lizard) was the direct cause of the damage and second, he made the ultimate decision to inject himself.  As I recall, although Oscorp was pushing Connors to go to human trials, they did not pressure him to use it on himself—Oscorp’s plan was to use it on unwitting subjects at a veterans’ hospital (itself a violation of not just a few laws and scientific ethical norms).  As you might suspect, the fact that the side effects of the injection were a surprise for Connors means that the analysis is different for his first injection versus his subsequent doses.

The first time that Dr. Connors injects himself with the lizard DNA serum he certainly didn’t expect to be turned into a rampaging monster.  He hoped he would regrow his arm, and I suppose he was aware of the risks that the earlier animal trials had shown (i.e. death).  He wasn’t aware of the monstrous transformation risk, since as I recall the two ‘successful’ lab rats didn’t mutate until after Connors had already injected himself.  So we can conclude that Connors didn’t intend the damage when he injected himself for the first time, but that doesn’t get him off the hook.  There’s still the question of whether he should be liable for his actions while transformed into the Lizard and the question of negligence.

A. Liability as the Lizard

The first time Connors transforms he seems to be fairly mindless.  He vaguely has a plan to stop Ratha from taking the serum to the veterans’ hospital, but we don’t seem too much evidence of conscious thought.  I would be willing to give him the benefit of the doubt and say that he was not acting consciously and so wouldn’t be liable.  Alternatively, he could claim a defense of incapacity or even intoxication.  Although he injected himself voluntarily (which usually defeats a defense of intoxication), he had no reason to expect the side effects, which is more akin to involuntary intoxication.

The situation is different during subsequent transformations, however.  The Lizard talks, makes plans, and adapts to changing circumstances.  It’s much more reasonable to hold Connors liable for his actions as the Lizard after his first transformation.

B. Negligence

In New York as in many states, “in any cause of action founded upon negligence, a successful plaintiff must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by the injured party.” Becker v. Schwartz, 46 N.Y.2d 401, 410 (1978).  These are the three common elements of negligence: duty, breach, and proximate cause.

The question of the existence of a duty of care toward another is very complex: “the existence and scope of an alleged tortfeasor’s duty, at the threshold, is a legal, policy-laden determination dependent on consideration of different forces, including logic, science, competing socioeconomic policies, and contractual assumptions of responsibility.” Milliken & Co. v. Consolidated Edison Co. of New York, Inc., 84 N.Y.2d 469, 477 (1994).  Luckily, we can dispose of the issue simply by considering the element of breach.

Assuming that Connors owed a duty to the people he injured, it is unlikely that he breached that duty by failing to exercise reasonable care the first time he injected himself with the serum.  As mentioned, the side effects of the serum were completely unexpected even by Dr. Connors, who was an expert in the field and had conducted animal trials with similar serums.  So he probably isn’t liable for negligence with regard to his first injection, but after that he knew the risks and so would likely be liable.

II. Parker and Oscorp

Clearly neither Peter Parker nor Oscorp intended for Connors to become a crazed monster, so their liability, if any, would probably turn on negligence.  But as we’ve seen, Connors likely wasn’t acting negligently when he injected himself.  It stands to reason, then, that Parker was not acting negligently by giving Connors the formula, since he had even less reason to suspect such side effects.  And while Oscorp pushed for human testing, they didn’t push for Connors to try it on himself, so it seems even further removed from any potential breach of a duty of care.

Furthermore, we can consider the element of proximate cause.  In order to be liable in negligence, the defendant must have been the proximate cause of the plaintiff’s injury.  But what is proximate cause?  Proximate cause (also called ‘legal cause’) is how the law ‘cuts off’ the chain of responsibility.  It is not enough that the defendant’s actions be a literal cause of the injury.  After all, one could claim that if Connors hadn’t been born then the harm wouldn’t have happened, therefore Connors’s parents (and grandparents and so on) are responsible.  This is true in some sense, but the law would like to assign fault to a cause that is closer (i.e. more proximate) to the injury.

In New York there are many tests or factors to consider in deciding whether or not something is the proximate cause of an injury, but the most common one, as in many other states, is foreseeability.  “[T]he rule is well established that for a negligent act to be regarded as the proximate cause of an injury to another, the injury must be one which could reasonably be foreseen. In other words, the proximate cause must be one which in view of all the surrounding circumstances might readily have been foreseen by an ordinarily prudent man as likely to result in the injury.”  Ward v. State, 81 Misc.2d 583, 588 (Ct. Claims N.Y. 1975).

On the other hand, “if, with the benefit of hindsight, it appears highly extraordinary that defendant’s act should have brought about the harm, the act will not be considered a proximate cause.”  Mack v. Altmans Stage Lighting Co, Inc., 98 A.D.2d 468, 470 (Sup. Ct. App. Div. 1984).  It seems to safe to say that it was highly extraordinary that Connors’s own action brought about the harm.  Thus, Parker’s and Oscorp’s actions, which were even further removed from the harm, certainly couldn’t be a proximate cause.

III. Conclusion

In sum, Parker and Oscorp are probably in the clear with regard to the Lizard, although Oscorp may have other crimes to answer for.  Connors may not be liable for the damage caused during his first transformation because injecting himself was probably not legally negligent, and he may not have been in control of himself during the first transformation.  But whether because he was conscious during subsequent transformations or because he knew the risks of the serum, he would be liable for his actions during subsequent transformations.

30 responses to “Nobody Foresees the Lizard

  1. I think the important thing to remember is that in the Marvel Universe, giant rampaging monsters are predictable. As such, you can get insurance for such potential losses. I suggest “Damage Control” as they seem to be the most comprehensive. *Not Legal Advice*

    • That’s definitely true in the mainstream Marvel Universe (i.e. Earth-616), but the Amazing Spider-Man is set on Earth-120703, which isn’t even the same universe as the Marvel Cinematic Universe (i.e. Earth-199999, the universe of The Avengers movie and related films). So, in the context of the film, Parker and Connors are the first superhumans to exist in that world.

      • It’s only the first story YOU have heard of superhumans in that world. Huge difference. Never assume because you’ve heard a story you’ve heard the whole story.
        Did we learn nothing from Batman II? (the second Batman II.)

        Where’d my linked picture go?

      • I think if other superhumans were known to exist then Parker, Connors, or Capt. Stacy would have mentioned something. Instead, Parker and Connors are completely shocked by their respective transformations and Stacy makes quips about Godzilla. So while other superhumans may be unveiled in future movies, I still think Connors wasn’t breaching a duty (if one existed) when he injected himself the first time.

        I have no idea about the linked image. Did you try to use the img tag? You can use regular links but not the img tag.

      • Absent any mention of there being other superhuman/meta-human/whatever individuals I think we’re fairly safe in assuming that they do not exist in this story. Demanding the audience assume something exists when it is never mentioned and we are told that this is in all other ways an early 21st century New York City is not a good way to tell a story.

    • Is injecting yourself with untested substances a strict liability activity? Could negligence be the wrong theory of liability?

      • Even if it were, strict liability does not mean liability for all resulting injuries. It has to be the kind of injury the strict liability was imposed to prevent or address. For example, keeping wild animals is typically a strict liability activity. Suppose someone keeps a wild snapping turtle on their property. One day, a visitor stubs their toe on the turtle while walking on the property. The property owner would not be liable under strict liability because stubbing one’s toe on the wild animal is not the kind of injury the strict liability is imposed for (though maybe he or she had a duty to warn of a hazard on the property…).

        So, while injecting yourself with untested substances might somehow be a strict liability activity (maybe it’s ultrahazardous?), I don’t think turning into a rampaging monster is the motivating concern.

        That said, I don’t think it is a strict liability activity. The only significant risk in most cases is to the injectee, so the plaintiff and defendant would be the same person.

      • James Pollock

        I meant that Connors might be able to sue his employer for HIS injuries.

      • @James Pollock I do not think Connors would be able to win in a suit against OsCorp. He ultimately injected himself. OsCorp did not inject him through any agent other than himself, so it would be hard to implicate OsCorp in any way.

        Even if a Court accepted a strained version of respondeat superior to say that OsCorp could possibly be responsible, the fact Connors did it to himself is very strong evidence of consent or assumption of the risk (depending on whether they went under an intentional tort or a negligence theory). Of course there are various ways to negate such consent, including duress or being deliberately misled. But threat of losing his job would probably not be nearly enough to sustain duress for an action like using himself as a guinea pig, and Connors himself was the person best positioned in the entire world to understand the risks and possible consequences of injecting himself. Duress would also probably fail because OsCorp was presuring him to test the formula on others, he was going beyond orders to do it on himself.

  2. You wouldn’t get Oscorp on respondeat superior? I think that Connors is acting in the course and scope of employment.

    • I don’t think so, for two reasons. First, I believe he was fired when he refused to go forward with human testing, prompting him to try the serum on himself before he lost access to it. Second, testing the serum on Connors wasn’t part of Oscorp’s (illegal) human testing plan; he came up with that idea on his own and he did it for his own personal benefit, not for the benefit of the company.

      In any case at best that would get Oscorp on the hook for the first rampage, and then only if Lizard Connors was deemed not to be acting consciously and intentionally, since it’s extremely unlikely that “throwing cars off a bridge trying to stop/kill your supervisor” is within the scope of Connors’s employment. And after the first rampage it was all Connors anyway.

      • James Pollock

        How can you address respondeat superior and NOT hit the most amusing element of all, that is, determining if the Lizard is pursuing a “frolic”?

        Injecting himself with the serum may well have been within the scope of his employment (there IS a scientific history of scientists… famous scientists, scientists of great achievement… experimenting on themselves) but clearly turning into a reptile and destroying property is outside the scope of employment.

      • Turning into the Lizard the first time wouldn’t be a frolic, even if the injection were within the scope of Connors’ employment, since he didn’t intend to deviate from the parameters of his employment. But the subsequent injections and rampages could be seen as frolics (through the park, if you will), since he knew what he was doing and chose to do it anyway, despite the fact that OsCorp would definitely not approve of the destruction of millions of dollars of NYC property as part of Connors’ job.

  3. Melanie Koleini

    I know the rules work differently in the comics but considering the high probability of test subjects dying, how did Oscorp expect to make any money with the human testing?

    Oscorp could probably have gotten initial approval to test the serum on humans (at least under federal law). (He’d probably have to falsify some of the animal data, which is illegal but he could get approval for Phase I testing.)

    He could not have gotten approval to test the serum at the VA. Getting approval to do any testing at the VA is difficult. A dangerous Phase I study for a non-life-threatening condition would be almost impossible to get approval for.

    But why would Oscorp want to? Given the risks to test subjects, why use test subjects who have such easy access to lawyers and the public’s sympathy? Why not either advertizes for amputees on Crags List or go to a third world country to test your dangerous new drug?

    • As best I could tell the theory was that a VA hospital would have a relatively large number of amputees, and if the clandestine test was successful, then Mr. Osborn (owner of Oscorp) would take the serum and his life would be saved. Oscorp could eventually get approval for human testing (after more animal tests), but there wasn’t enough time because Osborn was dying. That was the tension between Connors (who wanted to wait) and Ratha (who didn’t).

      I guess if the test failed and Oscorp was ruined then Osborn wouldn’t care because he was dying anyway. Exactly what life-threatening condition Osborn had that would be cured by lizard DNA was not clear to me.

      • Osborne’s life threatening is presumably insanus pregoblinitis. I also don’t think the specifics matter, but if I had to guess something like cancer that requires organ regrowth, or quite possibly plain old age.

  4. This description of the facts made me think of the origin story for the Hulk’s TV series (The Bill Bixby one, I mean) How would this analysis differ in the case of the Hulk, using the TV series origin story? (Dr. David Banner lost a child in a car accident when he was unable to lift the car; subsequently he studied cases of hysterical strength, where people DID lift cars, and found that the ability to summon heretofore unsuspected strength coincided with high incidence of gamma radiation from space; his own case happened when the radiation was at a low. So he decides to intentionally irradiate himself with gamma radiation to see if he can then summon hysterical strength. An accident gives him a far higher dose than he intends, and well, from then on he rips everything but his pants when he gets angry.)
    For that matter, is Rick Jones on the hook to Banner for damages using the comics origin story? His criminal act of trespass would seem to be the proximate cause of the injury. Does the general duty not to break the law meet the duty prong for negligence? Or is it on Banner/the army because testing nuclear weapons is a strict liability activity?

    • Committing a crime can be ‘negligence per se,’ but only if the resulting injury was the kind of thing the criminal statute was meant to prevent. Does that apply here? (I’m not familiar with the TV series origin story). Proximate cause can still be an issue, though. Was the gamma radiation exposure a foreseeable result of the trespass? If so, then the subsequent mutation into the Hulk would be included under the eggshell skull rule.

      Holding the army liable would be depend on sovereign immunity. I’m not sure how that works in the military context, particularly when civilians are involved.

      • James Pollock

        Negligence per se is normally invoked in cases of regulatory noncompliance rather than violations of the criminal code, isn’t it? I believe the casebook case on the topic was glass in a shower stall that was too thin for building code compliance (because, of course, it shattered into big sharp pieces if you press against it, and that’s why shower stalls are made of plastic nowadays.)

      • I don’t know in what cases it’s typically invoked, but it can definitely apply in cases of criminal violations. The Restatement rule (the rule is similar in New York) is very general:

        The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
        (a) to protect a class of persons which includes the one whose interest is invaded, and
        (b) to protect the particular interest which is invaded, and
        (c) to protect that interest against the kind of harm which has resulted, and
        (d) to protect that interest against the particular hazard from which the harm results.

    • In the comics origin, Rick Jones wandered onto a bomb testing site. Banner was driving by in his jeep and saw Rick Jones enter the site. Banner rushed down to stop Rick Jones before he could be exposed to the bomb. Banner was able to warn Rick Jones in time so that Rick Jones could jump down into a ditch but Bruce Banner wasn’t able to jump down into the ditch in time.

      As I recall, there was a sign outside the base saying “Government property. Keep out!” It did not say “Danger! Gamma bomb testing!” however so Rick Jones did not know he was in any danger. (It’s not as though the army had a shoot to kill policy for intruders.) Also, as Banner was driving around in his jeep on the site when he saw Rick it stands to reason that Rick Jones could easily have entered the base and not been in danger had he not wandered in the direction of the test site.

      What about the army’s liability? The army did test nuclear bombs back in the 40s and 50s and they sure as Hell had to make sure nobody was on site. Certainly the army has a duty to protect public safety and the possibility of somebody getting vaporized by a nuclear bomb is a foreseeable event that would not be considered an extraordinary result of a nuclear blast so it seems that a nuclear blast would have been the proximate cause of Rick Jones’ death had Rick Jones died in the blast. So what would the army’s laibility have been? I suppose if Rick Jones had not died in the blast then the army would be liable for medical care. By extension the government might have been expected to step in and pay for Rick Jones’ funeral had he died. If the gamma bomb had been set off by a private corporation rather than the government then Rick Jones’ family might even be able to file a lawsuit but as the army is part of the government I don’t think any such lawsuit could be filed. Based on the argument you give above regarding the lizard, I think the government would have also been in the clear had Rick Jones become a rampaging monster because that wouldn’t have been a foreseeable outcome.

      What about Bruce Banner then? Well the army was probably already paying for his medical bills and he probably had a life insurance policy. (His cousin Jennifer Walters could have been a beneficiary.) I don’t see why the army would have any additional liability because, again, Banner becoming the Hulk wasn’t a foreseeable outcome. Indeed, because Banner knew the risk the chain of causality was broken as soon as Banner consciously made the decision to run onto the site after Rick Jones. Indeed, as the bomb’s designer, Bruce Banner would have known better than anybody what the risks were.

      • James Pollock

        A couple of things can cut off negligence. One is “assumption of the risk” and another is “intervening criminal act”. Assumption of the risk can be either explicit or implied (although some states statutorily dismiss implied assumption of the risk). Basically, if you signed a waiver clearing someone of liability, you’ve assumed the risk of injury and can’t sue them when you get hurt, but it isn’t always signing a waiver that does it… look closely at your ticket next time you go to a baseball game, because when you sit in the bleachers, you assume the risk that you may be hit by a foul ball, and it probably says so on the ticket. When you do something that is dangerous, and you know it’s dangerous, but you don’t take every possible precaution to avoid injury, you may be found to have assumed the risk by implication. When Rick drives onto a posted bomb range, he assumes the risk that a bomb might go off near where he happens to be.
        Intervening criminal act is just what it sounds like. If you leave your car unlocked, and someone steals it and runs over five children and poodle in a crosswalk, are you guilty of negligence? After all, your leaving the car unlocked is the reason the bad guy was in your car and able to run anybody down. Your liability for negligence, however, ends when the criminal act of stealing the car begins; liability that follows from the theft goes to the thief instead. Trespassing on land is a criminal act, so it would seem that the criminal act of trespassing would cut off the liability of the owner for any injury resulting from the trespass, but here property law and tort law overlap, so the rules get complicated, and there are situations where the property owner may be liable for injury, even to a trespasser.

  5. As it was apparently developed by Peter’s father as part of his employment at OSCORP, it is likely that the formula belongs to OSCORP. So Peter giving the Formula to Conners is just returning lost property to it’s rightful owner (which he may well be legally obligated to do). That should remove any liability on Peter’s part. And isn’t Connor’s injecting himself a deliberate intervening act. It not like it was a Lab Explosion while Peter was working with Connors. I guess that’s more argument against Peter being an Proximate Cause.

  6. There were suggestions that the serum affected Connors’ mind and that even though he had transformed back to human form his mind was still influenced by it. So couldn’t you argue that 1) it’s involuntary intoxication for the reasons given here, and 2) this state of intoxication didn’t end, and subsequent uses of the serum only happened because he was involuntarily intoxicated from the original dose?

  7. In the comics, Dr. Banner is not liable for any damage Rick Jones suffered. He stopped the detonation countdown, went out personally to remove Rick from the testing range, and when the countdown was reactivated by a saboteur, pushed Rick into a blast trench to protect him as best he could. The Army might or might not be liable, depending on how thorough their security measures were.

  8. UPDATE: Promotional material for The Amazing Spider-Man 2 has Dr. Connors being found guilty of all charges, including the murder of Captain Stacy. Read about it here: http://thedailybugle.tumblr.com/post/72509118182/by-joy-mercado-the-trial-of-dr-curt-connors-came

    • Maybe it’s time for a Law and the Multiverse Retcon?

      • An update-type Retcon, perhaps. Strictly speaking this post was about civil liability, not criminal charges. Our answer to the criminal liability question would more-or-less match The Daily Bugle article. Using the serum, particularly after its effects were known, is voluntary intoxication, which is not generally a defense to crimes.

  9. Though I think its likely that the reason (or part of the reason) that Connors failed was that he simply wasn’t believed about the whole “OsCorp is evil” thing. He has little to no evidence and OsCorp has money and connections and lawyers, and probably a squeaky clean reputation. In that case he sounds even more culpable as it sounds like he is lying and making up excuses.

    Also I imagine that his claim would have been that he WASN’T voluntarily intoxicating himself; ie. that after he took the serum the first time, his mind was warped and every other time he took the serum it was because the serum- or some schizo-delusion caused by the serum- was controlling him. Hence how he immediately helped Peter out once the serum was purged from his body.

    Though legally he might still be culpable as he retained his sense of right and wrong, even if he wasn’t in total control of himself.

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