Firestorm on Trial, Part 2

As mentioned at the end of the previous post in this series, Felicity Smoak’s particularly claim against Firestorm appears to be malpractice.  Firestorm asks “Wait a second, come on…you’re not serious. How can you sue me?” to which she replies “Ever hear of malpractice, flamebrain? Read some newspapers.”

So how about it?  Could a superhero be liable for malpractice (apart from ones like Daredevil or Dr. Strange, of course)?

I. Who is Liable for Malpractice?

We commonly think of malpractice as being something that only doctors need to worry about, but medical malpractice is only one kind of malpractice.  Attorneys certainly worry about legal malpractice, and accounts and others can also be liable for professional malpractice.  But what about superheroes?  In New York at least, I think the answer is no.

The highest court in New York, the Court of Appeals, has defined malpractice as “professional misfeasance toward one’s client.” Chase Scientific Research v. NIA Group, 96 N.Y.2d 20 (2001).  Over the years before the Chase Scientific case, the scope of nonmedical malpractice liability in New York had grown, perhaps even enough to include superheroes.  Cases held that it covered attorneys, accountants, engineers, insurance brokers, surveyors, and even landscapers. Roizen v. Marder’s Nurseries, 161 Misc.2d 689, 691 (Sup. Ct. 1994).  And then the state legislature made some amendments to the statute of limitations rules for nonmedical malpractice, which gave the Court of Appeals a reason to consider the definition of a “professional” in Chase Scientific.

In that case, the court held that the legislature intended to include only a few discrete groups sharing qualities such as “extensive formal learning and training, licensure and regulation indicating a qualification to practice, a code of conduct imposing standards beyond those accepted in the marketplace and a system of discipline for violation of those standards.” Chase Scientific, 96 N.Y.2d at 29.  Basically, according to the court, that means architects, engineers, lawyers, and accountants.

That’s a pretty tough bar for superheroes to meet.  They don’t really have formal learning or training.  In the DC Universe there are hints and references to superhero or “meta-human” registration laws that give superheroes certain benefits, such as the ability to testify in costume under the DC Universe’s fictional version of the 12th Amendment.  That might count as “licensure and regulation indicating a qualification to practice.”  We could even assume that the licensing system comes with a code of conduct and a system of discipline, but that’s a bit of a reach.

But even assuming that Smoak somehow manages to convince a court that superheroes are a new professional class, she would still have to show that Firestorm had a professional-client relationship with the company that owned the computer disks that he ruined.  No professional-client relationship, no malpractice.  There might be ordinary negligence, of course, but there can’t be malpractice.

Could there have been such a relationship here?  Taking on work for profit is not a requirement, or else doctors and attorneys doing charity work would be immune to malpractice claims.  But what about someone like Firestorm who is minding their own business, sees someone in need, and swoops into help with the imperiled person’s implied consent?  Can a professional-client relationship be formed in such circumstances?  The answer is yes.  Those kinds of situations are one of the major reasons why Good Samaritan laws exist.  So there could have been an implied professional-client relationship, but it’s probably a moot point unless New York’s laws changed (either its superhero licensing or its malpractice laws).  But just for fun, let’s run with this argument a little longer.

II. What is the Standard of Care?

One of the main features that distinguishes malpractice from ordinary negligence is the standard of care.  In ordinary negligence the standard is reasonable care.  In malpractice the situation is more complicated.  For an attorney in New York it’s something like the “degree of skill commonly exercised by an ordinary member of the legal community.”  Thaler & Thaler v. Gupta, 208 A.D.2d 1130, 1132 (Sup. Ct. App. Div. 1994).  For a doctor the rule is especially complex, taking into account the standard of care in the local community, developments in the science of medicine, and the degree of specialization.  It’s that higher standard of care that makes suing for malpractice rather than ordinary negligence worth the trouble from the plaintiff’s point of view.

The practical upshot to all this is that, if superheroes were subject to malpractice liability, it’s very likely that the superhero standard of care would vary from place to place.  Areas with a lot of “A-list” superheroes (e.g. New York, Metropolis) would demand a high level of care: fast service, minimal collateral damage.  People in Milwaukee might not be able to expect quite that level of service.

III. Conclusion

As we concluded last time, Smoak might have a negligence claim against Firestorm.  It relies on some novel legal arguments, and in my opinion it’s pretty tenuous as a factual matter, but I think it’s a good faith claim.  The malpractice claim is a lot shakier.  Back in the early 1980s it might have still had a prayer, but I think only because the Court of Appeals hadn’t really seriously considered the subject.  Once the topic came up squarely on appeal it had no trouble significantly constraining the definition of malpractice even in the absence of specific language in the statute defining “malpractice” or “professional.”  So probably no malpractice liability for superheroes, at least in New York.

We haven’t seen the last of Felicity Smoak, though, nor the last of Firestorm causing trouble for her business.  Things only get worse from here, so stay tuned!

9 Responses to Firestorm on Trial, Part 2

  1. A quick question… even under the old rules, does having supranatural abilities automatically make one a “professional” superhero? (One of the hallmarks of professionals is that they must join the group that regulates the profession… notably, for lawyers, seeking admission to the bar. Does admission to the Justice League serve a similar purpose for the “profession” of superheroing? And to what extent is a battle with a supervillain a public act of superheroics vs. a private brawl between two individuals?)

    Does DC’s New York have a lot of superhero activity? In the 1980′s, the Teen Titans were headquartered in/near NYC, but I’m having trouble thinking of another off the top of my head (in part because I wasn’t as voracious reading DC’s output as Marvel’s in the 1980′s.)

    • I wouldn’t think so. I think there would either have to be a licensing system or an offer of professional services. Now, there wouldn’t necessarily have to be an offer of professional services in the particular case (as in saving a helpless person), but I think at least the person would have to make a habit of working professionally, though not necessarily for pay. Compare a police officer who performs CPR (no malpractice liability; there was a case in NY about this) to a doctor who did the same (malpractice liability).

      One of the hallmarks of professionals is that they must join the group that regulates the profession

      That’s where I think the superhero registration laws come into play. It seems like the DC Universe has had such laws at various times, including potentially at this time. I think that would matter a lot more than belonging to a privately organized superhero team like the Justice League.

      Does DC’s New York have a lot of superhero activity?

      I don’t think so. The DC Wikia only lists 9 NYC-based superheroes, though I’m sure there are more. My mention of NYC was meant to apply more to the Marvel universe.

  2. Christopher L. Bennett

    I’d say that some superheroes do arguably “have formal learning or training,” such as students of the Xavier Institute or the Avengers Academy, or the trainees from the post-Civil War Fifty State Initiative. Although in the DCU, superhero training seems to be typically more of an apprentice sort of thing, in the case of characters like the various Robins, Speedy, Kid Flash, etc. Ditto for the Middleman organization, where each Middleman trains his or her successor. Would that constitute “formal” training? Does home schooling count as formal education?

    • Certainly many superheroes do have formal learning or training, but one does not have to have such training in order to be a superhero the way one has to have such training in order to be a lawyer or a doctor. That is the distinction the court was talking about.

      • In a post-Civil War Marvel (at least until they wrote that away) any ‘hero’ acting without that training might run afoul of other laws, so they either would be guilty of not going through a formal program or they might be liable for malpractice. Of course even if Firestorm was in post-Civil War Marvel and had gone through that training it obviously doesn’t mean that he is guilty of malpractice, simply that he theoretically could be.

        For the X-Men, they have some luck in that the U.S. doesn’t have some laws that other nations do that might make the existence of their organization illegal (probably) but the X-Men are still going to have legal troubles (that I think this site has covered in the past).

        As for the Great Lakes, they have (or had) Squirrel Girl. Based on the region’s importance it sounds like they had an incredible bargain.

      • I assume you’re referring to the 50 State Initiative? That would certainly get a lot closer to something like a professional licensing scheme, depending on how exactly it worked. A court would still have to decide whether it fit that state’s criteria. This could lead to a patchwork of regulation where superheroes were subject to malpractice liability in some of the 50 states but not others.

        The GLA had Squirrel Girl, it’s true, but presumably she didn’t show up to every minor incident in the area.

      • Civil War never did take federalism into account. I presume that federal government worked with/imposed on state governors to have this system accepted at the state level (because otherwise the thing makes even less sense) but state courts (and federal courts for that matter) might be far more independent-minded.

        Come to think of it, Wikipedia puts the the GLA as the 50 State Initiative for Wisconsin but with a name like that I wonder if governors of adjoining states have given them permission to act in those states as well or if the name’s a misleading one.

  3. So what is a superpowered but unlicensed individual (or composite being) supposed to do when they come upon a person needing super-rescuing? Particularly if the state has a Good Samaritan statute (the duty-to-rescue type, not the immunity-from-battery type)?

    How about the Tick? They had super-tryouts, where superheroes were assigned their territory based on their powers. The Tick, of course, hoped to qualifty to defend The City when he tried out, and made it.

    • These should have been two different posts, one standalone, and the other attached to the “what constitutes a professional?” thread. (One of the characteristics of professionals is that they police their own ranks.)

      I think that superheroes are a hybrid, with some professionals, and some amateurs, and both allowed to practice (similar to the way that IT allows both certified and non-certified professionals to perform IT work.)

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