In Fury of Firestorm # 29 we once again find Firestorm accused of a tort. This time, however, there are a couple of twists.
I. The Scene
Firestorm foils an attack by minor villain Stratos and extremely minor villain Bazooka Joan atop one of the World Trade Center towers (this is the mid-1980s, remember). He does so by turning the roof of the building into magnetic lodestone, causing the villains to be pinned to the roof. After the authorities arrive he restores the roof. At this point, who appears but Felicity Smoak!
In a stroke of bad luck for Firestorm it turns out her software company has offices there. She informs him that “When you turned the roof to lodestone, you not only magnetized my software…but wiped out my business’ computer records! I’m finished. Bankrupt. Kaput. And it’s your fault.” She continues “It’s going to cost you every penny! I’m organizing a class action suit against you! Me—and the other businesses in the building!”
Firestorm’s clever retort? He turns Smoak’s clothes into soap suds, in front of at least 6 other people.
So we have three issues here. First, does Smoak have a better case this time around? Second, what’s this about a class action? And third, clearly Firestorm is on the hook for the soap suds business, but for what, exactly?
II. Negligence, Recklessness, and Intentional Misconduct
Previously, Firestorm had erased some of Ms. Smoak’s company’s computer disks while rescuing a freight train using a giant magnet. It was debatable whether this would qualify as negligence, for many reasons. But now, at a minimum, Firestorm was on notice that using large-scale magnetism could have that effect.
These new facts are a lot more compelling for the plaintiff(s). Rather than a freight train of possibly unknown contents, the fight is on top of an office building. Office buildings, even in the mid-1980s, are well-known to contain computers. And Firestorm is on notice that powerful magnetic fields and computers don’t mix. This makes a much stronger case for negligence.
In fact, Smoak may be able to argue recklessness or even intentional misconduct (in this case, trespass to chattels aka trespass to property). Recklessness “requires evidence that ‘the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome.” Saarinen v. Kerr, 84 N.Y.2d 494, 501 (1994). “Under the principle of law that allows recovery for a trespass to chattels, it is necessary that the defendant have acted for the purpose of interfering with the chattel, or what is almost the same thing, that he have acted with knowledge that such would be the result of his conduct.” Buckeye Pipeline Co. v. Congel-Hazard, 41 A.D.2d 590 (Sup. Ct. App. Div. 1973) (emphasis added).
In this case, the line between negligence, recklessness, and intentional misconduct is basically whether Firestorm a) merely acted unreasonably in subduing the villains, b) knew that it was highly probable that using the lodestone would cause harm to nearby computers but consciously disregarded that unreasonable risk, or c) knew that using the lodestone would cause harm to nearby computers and did it anyway.
Regardless of the theory that Smoak goes with (and she may go with all three), there are still lots of other issues. For example, in the case of negligence, she would still have to prove that Firestorm acted unreasonably. This would probably require showing that there was another, safer way for him to subdue the villains. Since Firestorm’s power is so broad, that may not be too difficult.
Another advantage for Smoak in this case is that, at the point Firestorm turned the roof into lodestone, the villains were not threatening any bystanders. This is different than in the freight train case, where there were people on the train whose lives were threatened. Saving those lives potentially excuses a significant amount of property damage.
III. A Class Action
While the physics of lodestone (even a whole roof’s worth) wiping a building’s worth of computers is a little sketchy (somebody call Dr. Kakalios), let’s assume Smoak isn’t exaggerating. The WTC had a lot of tenants. Could they qualify as a class?
In New York, “One or more members of a class may sue or be sued as representative parties on behalf of all if:
1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;
2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;
3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;
4. the representative parties will fairly and adequately protect the interests of the class; and
5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
N.Y. CPLR § 901(a).
This is probably not a bad case for a class action. Unlike most mass tort cases, this case arises out of a single action by the defendant that affected all of the plaintiffs in the same way. The only issue that varies among the parties is the extent of damages, and different levels of damages among plaintiffs does not defeat class certification. Englade v. Harpercollins, 289 A.D.2d 159, 160 (Sup. Ct. App. Div. 2001).
The number of plaintiffs required for a class depends on the details of the case, but there have been cases of class actions involving fewer than 50 plaintiffs. Usually classes are in the hundreds or thousands. We haven’t counted the number of tenants in WTC One or Two, but it appears to have been in the low hundreds.
IV. The Soap Suds Incident
Smoak could accuse Firestorm of any number of torts here, including battery, trespass to chattels, invasion of privacy, and intentional infliction of emotional distress. Note that the tort of battery doesn’t just apply to a person’s body; it also includes things closely associated with the person, such as clothing or something they are holding. It’s a little bit of a stretch to claim that Firestorm made an “offensive contact” with Smoak’s clothing using his powers, but if a laser pointer can cause a contact (Adams v. Com., 534 S.E.2d 347 (Ct. App. Va. 2000)), then so can subatomic rearrangement.
And unlike some states, New York allows for recovery in intentional infliction of emotional distress cases even when there are no physical symptoms caused by the distress. Battalla v. State, 10 N.Y.2d 237 (1961). There are four elements: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.” Howell v. NY Post, 81 N.Y.2d 115, 121 (1993). It seems pretty likely that those were met here.
This is all setting the stage for the actual lawsuit, which we’ll get to next week. But whether for causing collateral damage while saving the day or for humiliating a woman in public, Firestorm is definitely liable for something.