Firestorm on Trial, Part 1

Today’s post brings us back to the world of comic books and begins a series of posts about the legal troubles of Firestorm, as detailed in The Fury of Firestorm #23-50.  The stories were primarily written by Gerry Conway, who later went on to write for Perry Mason and Law & Order, so we should be in for a treat.  Thanks to the reader known only as Methane for bringing this great story arc to our attention.

The story is set in New York, so we will use the law of that state where possible.

In the first part of the arc we are introduced to Felicity Smoak, the litigious software company manager who we’ll be seeing a lot more of soon.  While flying over Manhattan, Firestorm sees a freight train about to go over a bridge into the Hudson.  Using his powers over matter, he (or is it they? Firestorm is confusing) converts some nearby scrap metal into a giant magnet and hoists the train to safety.

Unfortunately, the freight the train was carrying was “five carloads of computer chips and software disks,” which were ruined by the magnet, costing Smoak’s company eight million dollars. She indicates that she plans to sue Firestorm to recover the losses.

Setting aside the issue of squeezing blood from turnips, does she have any kind of a case? It’s not clear how many people were on the train, but since this was set in the 1980s, there was surely at least a conductor, and there’s some indication that Smoak may have been on the train as well. Firestorm says “you were going to crash”, and she is standing next to the train when Firestorm lands.

Basically, Smoak is alleging negligence on Firestorm’s part. This is a fair point.  He undertook to rescue the train and the people on it, which created a duty of ordinary care. “Under New York law, one who assumes a duty to act even though gratuitously, may thereby become subject to the duty of acting carefully.” Kaplan v. Dart Towing, 159 A.D.2d 610, 612 (Sup. Ct. App. Div. 1990). So the question is, would a reasonable person exercising ordinary care have done what Firestorm did? Was there some other way Firestorm could have saved the train that was even less likely to have side effects for its potential cargo yet still be as effective? Would a reasonable person exercising ordinary care have ever even thought about the possibility that the cargo might have been sensitive to magnetism, especially in the heat of the moment?

My guess is that, even if Firestorm could have saved the train in an equally effective but ‘safer’ way, the thought that the train might have been carrying magnetically-sensitive material would not have occurred to the ordinary reasonable person, especially in 1984.

That sounds bad for Ms. Smoak, but there is an alternate theory, one that is admittedly untested in the real world.  In the real world people do sometimes rescue other people, but they rarely do it by, say, levitating a freight train above Manhattan.  Could it not be argued that what Firestorm was doing constituted an abnormally dangerous activity?  Consider the:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

Restatement (Second) of Torts § 520. Some of these factors pretty clearly exist here (b, d, e).  Whether factors a, c, and f exist are harder to say and would again depend at least partly on testimony from Firestorm. Ultimately, whether to apply strict liability would be up to the judge rather than the jury.

Strict liability does have its limits. The damages are limited to those kinds of injuries that make the abnormally dangerous activity abnormally dangerous. For example, in the case of Foster v. Preston Mills Co., a logging operation was using explosives, which startled the mother mink at a mink ranch over two miles away, causing them to kill their kittens, which is apparently a common mink response to sudden disturbances.  The court held that although using explosives is a strict liability activity, the risk of causing mother mink to kill their kittens arises from “the exceedingly nervous disposition of mink, rather than the normal risks inherent in blasting operations.”

In this case, erasing computer disks is not what makes levitating a freight train dangerous.  But it might possibly be part of what makes creating a giant magnet in the middle of a crowded city dangerous.  It’s a bit of a stretch, but it’s a stronger case than negligence. And it’s actually something that should concern many superheroes, especially those whose superpowers are capable of causing significant collateral damage despite the exercise of reasonable care.

So, Smoak might have a case for strict liability, but it would be an untested theory. Next week we’ll address the claim she actually seems to be making: superhero malpractice!

36 Responses to Firestorm on Trial, Part 1

  1. Reminds me – I wonder if NASA or passengers aboard the aircraft in Superman Returns could sue him for the way he did it – the tail of the aircraft was already on fire when he arrived so he knew it was in trouble, and could have taken immediate action to stop it spinning out of control. Instead he pretty much demolished the aircraft, including the loss of both wings (where did they land? Was anyone hurt?), and threw it around so violently that seats were ripped loose and numerous passengers must have been injured. Was this a responsible thing to do over a city?

    • I think the test is what a reasonable person with Superman’s abilities would do. Superman should have gotten under the plane and pushed up. (Eventually he did.) When he grabbed the wing it broke off. However, the plane was spinning. I think a reasonable person with Superman’s powers might have wanted to stop the plane from spinning as soon as he could and grabbing the wing may have seemed like a reasonable thing to do.

  2. I think Smoaks is in danger of a nasty backlash. In 1984 we didn’t have optical discs in wide use, so those were probably magnetic disks and susceptible to magnetic damage (I can tell you stupid user stories about that!) The chips shouldn’t have been damaged by magnetics, they’re susceptible to power surges and electro-magnetic pulse. Magnetism is not EMP, nor would a magnetic field normally cause a static problem. If they were memory chips, those back then were extraordinarily sensitive to static damage, but they’re also shipped in static-proof tubes and foam, so they should be safe.

    Could this mean that Smoaks is attempting a fraud by claiming the chips are damaged when they aren’t?

    (optical discs were released commercially in the late 70’s/early 80’s in the form of the Pioneer LaserVision laserdisc player, but those were read-only and the discs were stamped/pressed like LP records, commercial recordable optical discs didn’t come along until 1988 or so.)

    Second issue: backups and insurance. Not having read the series as I don’t read Marvel and DC any more, I don’t know what the floppies contained. Were they development programs, business data, or a commercial program about to be released in to the distribution network and retail channel. If they were commercial programs, shouldn’t she have insurance on the shipment to guard against damage and loss? Shouldn’t she have carrier insurance on the shipment regardless? Sounds like extreme negligence to me if she didn’t.

    Even if it were the complete contents of her corporation’s development efforts and corporate data (and most corporate data at that time was on paper or on mainframes), then they should have been backed up and the backups not transported with the source originals. That’s negligence on her part, and if I had been a stockholder, I’d encourage others to sue to get her removed from the board and sacked if she was stupid enough to order the originals and copies to be transported on the same carrier.

    Regardless, I would think that the train company and the bridge owner should be happy to intercept the lawsuit on the behalf of Firestorm as the train and the resultant death lawsuits would add up to well over $8 mill.

    I don’t know about the legal merits, but the logic behind the script seems kind of shaky to me.

    We were using off-site storage and fire-proof safes and file cabinets even in the early 80’s to protect backups, I have no idea what was done with corporate business data on paper, that was never my area.

    • Were they development programs, business data, or a commercial program about to be released in to the distribution network and retail channel.

      I got the impression they were copies of commercial software being shipped for retail sale.

      If they were commercial programs, shouldn’t she have insurance on the shipment to guard against damage and loss?

      Ah, but the insurance copy would just turn around and sue Firestorm, assuming there’s a case to be had. Or maybe the company had insurance and it specifically excluded the actions of superpowered beings. The existence of the company Damage Control suggests that you have to pay extra for the collateral damage caused by superheroics. Or maybe she figured she’d cover all the bases by suing Firestorm and filing an insurance claim; she couldn’t collect a double payout, of course, but best to set the wheels in motion, right?

      • “The existence of the company Damage Control suggests that you have to pay extra for the collateral damage caused by superheroics”

        Or it would, if Firestorm and Damage Control existed in the same universe, which they do not.

        The insurance company would, in fact, turn around and sue the railroad, as it is a real company with real assets and a real address to serve process to.

      • Or it would, if Firestorm and Damage Control existed in the same universe, which they do not.

        Ah, whoops. Late-night posting after a long day and I got my DC/Marvel wires crossed. But I have seen a reference to “an issue of Grant Morrison’s Animal Man where a car gets trashed and the owner is really angry because his insurance doesn’t cover super heroes.” I couldn’t find a specific issue to confirm that, though.

        The insurance company would, in fact, turn around and sue the railroad, as it is a real company with real assets and a real address to serve process to.

        But the railroad didn’t destroy the disks. The insurance company would have to argue that the railroad (or bridge company, whichever) was negligent (we’ll take that as a given), and that it was foreseeable that a superhero would come to the rescue (easy enough) and that it was foreseeable that the superhero would negligently destroy the disks during the rescue.

        This is an arguable position. See, for example, the cases holding that a defendant who negligently injures a plaintiff may be held liable for further injuries caused by a doctor who negligently attempts to treat the plaintiff’s original injuries. But it’s only an arguable position. The insurance company would still have to prove foreseeability, whereas it could have a direct cause of action against Firestorm.

      • No, they just have to prove that it was forseeable that the cargo of a train would be destroyed if the bridge wasn’t kept in serviceable condition. I think they can do that.

      • No, they just have to prove that it was forseeable that the cargo of a train would be destroyed if the bridge wasn’t kept in serviceable condition. I think they can do that.

        You can’t recover for damages that didn’t actually occur. So the insurance company could only recover the damage caused by Firestorm, which requires proving that it was foreseeable that Firestorm would cause that damage.

      • The damage DID occur, with but-for causation being the failed bridge. The railroad might try to sue for contribution (assuming, again, that plaintiff can prove that the damage to the product actually happened in transit, of course.)

        An analogy would be suing the guy who caused a warehouse fire trying to argue that the fire didn’t damage all the goods, water damage from fighting the fire did. (Yes, I realize that some insurance policies are written this way, but I don’t think that negligence law works like this.)

        In any case, I don’t think the case is winnable for plaintiff. Sitting on the reasonable care argument, I think that “Is it reasonable to worry about inanimate cargo when lives are at stake?” is a winning argument, regardless of the value or nature of the cargo, if the rescue is succesfully completed.

        Say, are magnetically levitated trains “aircraft”? Does Firestorm need to worry about a phone call from the FAA? Maybe by operating an aircraft in contravention of laws regarding aircraft makes him a criminal intervenor. That would take the railroad (or owner of the bridge, if different) out of but-for causation.

      • The damage DID occur, with but-for causation being the failed bridge.

        But-for causation isn’t enough. The plaintiff must also prove proximate causation, which requires proving foreseeability.

        I think that “Is it reasonable to worry about inanimate cargo when lives are at stake?” is a winning argument, regardless of the value or nature of the cargo, if the rescue is succesfully completed.

        There has to be a limit to this argument, however. Consider the person tied to the railroad tracks hypothetical from the other thread, except suppose the train is unoccupied and remote controlled. Now suppose Firestorm shows up and decides to solve the problem not by untying the victim but by obliterating the train and a dozen miles of railroad track. I don’t think Firestorm can say “the train owner and railroad company have to go after the person who tied the victim to the tracks; it’s not reasonable to worry about inanimate property when lives are at stake.”

        Does the magnetic levitation method Firestorm used fall on the wrong side of that line? I don’t think so. But I think it’s a debatable point that will require some discovery about the nature and extent of Firestorm’s powers and whether he knew or should have known about the nature of the train’s cargo.

    • “The chips shouldn’t have been damaged by magnetics, they’re susceptible to power surges and electro-magnetic pulse. Magnetism is not EMP, nor would a magnetic field normally cause a static problem.”

      No, magnetism is not EMP. But either the formation of the magnet, or the magnet rapidly approaching the train, would subject the steel of the train to a rapidly changing magnetic field – and that very definitely will produce an EMP effect within and near the train. (The equations don’t care if the field or the conductor or both is moving, only that they be moving in relationship to each other.)

      Whether or not the pulse will induce sufficient localized current flow to damage the chips is a different (and very complex) issue, but the basic physics of the story are sound. (Read, “close enough for comics”.)

  3. Sounds to me like a claim that should fail on the “causation” prong. The fault isn’t on the part of the rescuer, because he didn’t create the hazard. The negligence is on either the owner of the bridge or the owner of the train, for failing to maintain the bridge and failure to ensure that the bridge was safe to use, respectively.

    • A rescuer has a duty to use ordinary care in carrying out a rescue, regardless of whether they created the original peril or not. See Parvi v. City of Kingston, 41 N.Y.2d 553, 559 (1977) (“The case law is clear that even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care.”). Now, the cases are normally concerned with harm to the individual, not property along for the ride, and I don’t know for sure if Firestorm’s duty of due care would extend to the contents of the train or not. I tend to think that it would, just as I tend to think that magnetizing the disks wouldn’t be a breach of that duty.

      But: if Firestorm should have known that there were magnetically-sensitive materials on the train and if there was a way for him to save the train without damaging the disks, then it was negligent for him not to have done so, even if the train was doomed before he showed up. That’s something that would have to be figured out at trial, I think.

      A typical rationale for this is that by showing up and taking action, Firestorm may have dissuaded other superheroes who could have done a better job of saving the train and its contents.

      • If he does nothing, the products are lost to water damage (assuming the bridge goes over water). Under the turn of events depicted, the products are lost to magnetic damage. Thus, Firestorm has not caused any loss, only changed its form. Make a claim on the insurance, that’s what it’s for.

        Besides that, there’s the problem of proving proximate cause. Were the disks tested before leaving the production facility? They may well have been damaged before Firestorm came upon the scene.

        And, I’m not sure that rescuers have a duty to protect property. For example, if a building is on fire, firemen routinely make forced entry to search for people, and then put out a fire by spraying water on it, which may do water damage to the property, but (it seems to me) the law wants rescuers to focus on saving persons, not property. If you require them to divide focus between saving persons AND saving property, the goal of saving persons may not be served. (Thought experiment: You come across a building that is on fire. You can hear a child screaming inside. You decide to undertake a rescue. The door is locked. Do you A) force the door as quickly as possible to effect rescue of the person trapped inside, or B) circumnavigate the property to see if there is a way to make entry without damaging the door?)

        Finally, there’s the challenge of getting the jury to find for plaintiff, after defendant saved all the people on the train (especially if plaintiff is included in that number).

      • If he does nothing, the products are lost to water damage (assuming the bridge goes over water). Under the turn of events depicted, the products are lost to magnetic damage. Thus, Firestorm has not caused any loss, only changed its form.

        That’s not the law. Once Firestorm began to act, he assumed a duty of due care.

        Consider, by analogy, a person tied to the railroad tracks with a train approaching from some distance. Two people come on the scene. One begins to act and so the other stands by and watches. Rather than untie the simple knots, the acting rescuer cuts the ropes with a knife, injuring the victim. The rescuer is liable to the victim, despite the fact that the victim would have died otherwise and so is arguably ‘better off’. Not only did the rescuer have a duty of due care, but by undertaking to act, the rescuer discouraged the other person from attempting a rescue, which may have been accomplished without injury.

        And, I’m not sure that rescuers have a duty to protect property.

        As I mentioned, the cases focus on the duty of care owed to the helpless person being rescued. It isn’t clear to what extent that duty extends to property being rescued, whether or not it is the property of the person being rescued. But the point of this post was to figure out whether Smoak had any kind of an arguable claim against Firestorm. I think she has enough to get past a motion to dismiss and possibly enough to get past summary judgment. There would likely be an appeal in any case, since many of these theories are untested.

  4. Using giant magnets seems a rather oblique way to rescue the train. Setting aside the computer disks, what about pacemakers? Or watches? Or belt buckles? There’s a lot of other ways a giant magnet could hurt passengers. If someone’s pacemaker stopped, would Firestorm be liable?

    • There’s two possible sources of “liability” here. First, you could have the simple tort of battery, second, a negligence action arising from injuries sustained in a botched rescue. Typically, states enact a “Good Samaritan Law” that exempts rescuers from battery tort suits if they act in good faith to effect a rescue.

      My guess would be that either a defense of others or a necessity defense would be used and that it would be successful. People can be hurt in a rescue but the assumption is that society would rather have people attempt rescues rather than defer to avoid civil liability, and usually being rescued is better than the alternative (although not always… for example, conditioned by TV that cars always explode into massive fireballs, bystander Samaritans sometimes rush to move people out of crashed cars instead of assessing and stabilizing their injuries first.)

      If someone has a pacemaker that gets overwhelmed by EMP, that’s bad… but if that same someone is on a train that falls off a bridge, that’s bad, too. That guy just has a bad day either way. The question that gets asked is “is it reasonable to subject one guy with a pacemaker to an EMP so that the rest of the people on the train don’t fall off a bridge?”

  5. Belated thought on this – the disks themselves, manuals etc. would be fine, it’s only the data on them that’s lost. So they can be returned to the factory and put through the duplication machinery again, the main cost would be opening the packaging and repackaging them afterwards, and shipping them out again.

    • That’s a fair point. It could be that there were enough disks on the train that it represented $8 million worth of duplication, especially given that the boxes would all have to be opened and repacked. And then there’s the lost time to market; this may have delayed an important product launch. I think we’ll just have to take Ms. Smoak’s word on it that the damages figure is (more or less) correct.

  6. As a side issue, Firestorm generally has the ability to permanently transmute matter. He can, given a little time, radiaclly alter the world’s economy by making large amounts of gold, platinum, silver, and so forth. He chooses not to because he’s a hero and he knows what kind of havoc it would cause.

    Could it be this ability that the plaintiff is looking to lay a claim on? If the case was won, could Firestorm be compelled to use his powers to create things of value despite the larger economic harm it might cause?

    • Couldn’t requiring Firestorm to use his powers (and not the power he used to give rise to the lawsuit in the first place) to fulfill the judgment in a lawsuit constitute involuntary servitude? It’s not like it’s specific performance relevant to a contract (ie having to paint a house as the outcome of a dispute involving a house painting contract). This is “we want money out of you and know that you don’t have sufficient funds to cover the judgment, but we know that you possess the power of transmutation which we can rope into a totally unrelated judgment”.

      • I’d assume they wouldn’t ask Firestorm for millions of dollars of gold. They’d just ask him for millions of dollars. He can produce the millions of dollars by any means he wants to.

        If he refuses to produce the money by transmutation, they can just garnish his wages and get as much as they can. I’m sure he’ll voluntarily transmute some gold to avoid having his wages garnished.

      • Yes, it’s very unlikely that a court would issue a positive injunction requiring Firestorm to use his powers to satisfy the judgment. The Thirteenth Amendment greatly limits the ability of American courts to require defendants to do things (as opposed to refraining from doing them).

        But really $8 million is a drop in the bucket compared to the global market for precious metals, especially if Firestorm divided it up between gold, silver, platinum, rhodium, palladium, and other valuable metals. I think he could satisfy the judgment without having any particular effect on the global economy. Certainly not compared to the existence of superheroes in general.

        Note, though, that specific performance in contracts is normally limited to contracts regarding the transfer of unique property, such as real estate or works of art. In those cases very little ‘work’ is required of the defendant; they just have to give up the goods. In the house painting example the more likely outcome is that the painter would have to pay the homeowner some amount of money; the precise amount would depend on the facts.

      • The knowledge that his powers could theoretically cause that havoc might end up causing havoc even if he did nothing. It would be amusing to see the various mining industries paying him an eight figure check every to refrain from ruining the market.

    • Imagine the fun if he converted a lump of lead mostly into gold… but a little bit of it, he turned into plutonium?

      • Yes, Firestorm is one of those characters who can destroy the world pretty easily if he wants. :>) He can make critical masses of isotopes any time he wants.

      • Chakat Firepaw

        That is basically the plot of a joking story about an alchemist. He’s been trying to turn iron into gold, (cannonballs are easy to get), but he has trouble controlling what metal he gets. Mostly he’s been funding himself selling the quicksilver he often gets.

        Then one time he changes the cannonball and there is this blue flash….

  7. Of course, Firestorm has a fairly easy out… he can decline to exist until the statute of limitations runs out.

    • If his component personalities were thought to be deliberately doing this, couldn’t they be liable (for conspiracy if nothing else)?

      • And this brings up a completely new line of thought. How would the law treat Firestorm as a composite person? Could they go after both Ronald Raymond and Martin Stein’s money? Or just Firestorm? Would Firestorm be treated as a partnership or perhaps a corporation? Should they file paperwork to be considered an LLP?

      • This is something I plan to address in a later post in the series, but the short version is that it depends on what the law knows about Firestorm. If it knows the truth about Firestorm then I think the simplest and most reasonable approach is to treat Firestorm as Ronald Raymond and Martin Stein acting together. To the extent Raymond and Stein disagree, they can work that out between themselves.

        In this example, suppose Firestorm is found liable for negligence. Instead, Raymond and Stein would be liable as joint tortfeasors under the rule of Summers v. Tice. If either Raymond or Stein wants to put the blame on the other, then they can introduce evidence showing that it was somehow entirely the fault of one or the other (in this case probably Stein, who came up with the magnet idea).

        Similarly, if Firestorm were accused of a crime, both Raymond and Stein would likely be charged under a conspiracy or accomplice theory.

        Firestorm is not a partnership or corporation, however. Being a corporation, LLC, LLP, etc requires incorporation, which I don’t think Firestorm has done. And Raymond and Stein aren’t carrying on a business for a profit, which is a requirement of being a partnership.

        But of course the law doesn’t know any of that about Firestorm and so would treat him as a separate, ordinary (in some sense) individual. Which is a bit of a practical problem, since he could theoretically avoid any judgment by separating into Raymond and Stein and laying low for a few years, as another commenter mentioned.

    • Usually, when two adults get together and form a new entity by fusing elements of each of them, they’re only legally responsible for the results for the first 18 years. So if he wanted to become immune to judgment, he could file for emancipation, and then disincorporate for however long it takes to wait out the SOL for any torts he might commit. Of course, if he miscalculates (perhaps something tolls the statute), he might get a nasty surprise…

  8. Pingback: Firestorm on Trial, Part 2 | Law and the Multiverse

  9. Pingback: Firestorm on Trial, Part 3 | Law and the Multiverse

  10. Pingback: Firestorm on Trial | Firestorm Fan

  11. Pingback: Firestorm on Trial, Part 4 | Law and the Multiverse

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>