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!