Firestorm on Trial, Part 3

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.

V. Conclusion

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.

43 Responses to Firestorm on Trial, Part 3

  1. If all of Ms. Smoak’s business records were destroyed by this incident, there is for sure negligence… Ms. Smoak’s. She has failed to undertake reasonable and common care to protect her records from loss. What’s NY’s opinion of contributory negligence? Speaking as an IT professional of long standing, I think Ms. Smoak’s negligence is more than 50% responsible for the loss, which in most states precludes any recovery for negligence.
    That same factor should be applied to the damages claim if she can prevail on an intentional tort… consequential damages should be (sharply!) limited because she has failed to take ordinary and common precautions against loss.
    I take no stand on the other tort… but if I recall correctly, blowing smoke in someone’s face is NOT a battery (in at least one state… I can’t remember the state, much less the parties’ names). So I agree that battery might be a stretch, although this seems like a case where there’s got to be SOMETHING tortious about that conduct. I think if I’m on that jury, I give her nominal damages of $1 on her IIED claim.

    • How far from reality are the physics of the Firestorm’s universe? Firestorm can transmute matter after all. Physics in his universe make NO since. In the real world, MRI machines produce a strong enough magnetic field to freeze a criminal in his tracks but computers operate normally in the room next door. Maybe we should just assume magnetism works differently in his universe. Let’s pretend tuning the roof of a building into a giant magnet really would scramble all the computer records (including floppy disks) stored in the building.
      If the rules of the universe are that different, would Ms. Smoak still be guilty of contributory negligence?

      • That depends on whether* whatever happened was a danger that was well known enough and common enough that she should have taken steps to prevent it. In Pollock’s post, the risks are well known enough and the damage that could conceivably be caused is serious enough that you might expect Smoak to take precautions. I wonder how much money has to be spent by companies in Marvel every single year just to remain up to date on what the dangers are, let alone taking steps to reduce them.

        *Assuming that in this instance we are speaking of the physics of Marvel are different enough from the physics of this universe. Marvel (like all comic book universes) tends to be pretty uncertain about when they want physics to act as they do in reality and when they want them to be purely fictional.

      • If Ms. Smoak’s business records are all in electronic form and all in the same place, she’s violated the First Rule of IT. It doesn’t matter WHAT caused the damage (and we’re fully aware that something could happen to things stored in the World Trade Center, right?)

        It doesn’t even take supervillains or terrorists. All sorts of things can cause data loss: A fire, or a false alarm for a fire that sets off the sprinklers, an employee angry over being passed over for a promotion, data entry error (Wait, I meant COPY, not DELETE!), or any of a dozen more increasingly unlikely, but not impossible, reasons.

      • Assuming that in this instance we are speaking of the physics of Marvel are different enough from the physics of this universe.

        Firestorm is a DC character, actually.

    • First, let’s not confuse Ms. Smoak with the company. It’s not even clear that she owns it.

      Second, by this point in time New York had moved to a comparative negligence rule.

      Third, let’s remember this is the mid-1980s. Be careful of hindsight bias. It could very well be that there were backups, just not off-site backups, as that’s the only kind that would have helped (discounting backups on non-magnetic media). I don’t think off-site backups were nearly as “ordinary and common” or “reasonable and common” in the mid-1980s as you claim. Here’s a May, 1982 article in Computerworld noting that “it would be safe to speculate that less than 10% of the nation’s management information systems functions have comprehensive, regularly tested contingency plans.” Off-site backups are a major part of what the article means by “contingency plan.”

      Anyway, as between the guy who created a giant magnet on an office building and a company that didn’t make off-site backups in the mid-1980s, I’d say more than 50% of the fault for the damage lies with giant magnet guy.

      The same reasoning applies to mitigation of damages, which is a reasonable precautions standard.

      although this seems like a case where there’s got to be SOMETHING tortious about that conduct

      At a minimum she’s got a conversion claim for the loss of her clothes.

      I think if I’m on that jury, I give her nominal damages of $1 on her IIED claim.

      $1 for being left nearly naked (and soon to be actually naked, given the nature of soap suds) in front of multiple witnesses, mostly male, at the top of the World Trade Center? Harsh.

      • “Third, let’s remember this is the mid-1980s. Be careful of hindsight bias. It could very well be that there were backups, just not off-site backups, as that’s the only kind that would have helped (discounting backups on non-magnetic media). I don’t think off-site backups were nearly as “ordinary and common” or “reasonable and common” in the mid-1980s as you claim. Here’s a May, 1982 article in Computerworld noting that “it would be safe to speculate that less than 10% of the nation’s management information systems functions have comprehensive, regularly tested contingency plans.” Off-site backups are a major part of what the article means by “contingency plan.””

        Offsite storage of business records predates electronic storage. Iron Mountain, for example, was founded in 1951. The key words in your quote are “regularly-tested” and “comprehensive”. Firms which lack offsite storage of vital business records are mismanaged, and that was true in the 1980′s. Today’s expectations are higher; some businesses require that complete and total failure of the primary datacenter result in failover with no downtime at all.
        (Computer professionals who fail to make and secure adequate backups are like doctors who smoke or lawyers who don’t have a will… the fact that they exist doesn’t disprove the general consensus that vital records need to be backed up offsite, smoking is bad for your health, and you should have will to ensure that your assets are distributed as you intend whether you feel death’s shadow upon you or not.)

        When you consult with the expert witness who tells you that failing to have adequate backups is a central tenet of IT that has existed for well over 50 years, perhaps your opinion on the comparative fault will change.

        “At a minimum she’s got a conversion claim for the loss of her clothes. ”
        Has he converted them? (in the legal sense, I mean… obviously he has converted them in the literal sense.)

        “$1 for being left nearly naked (and soon to be actually naked, given the nature of soap suds) in front of multiple witnesses, mostly male, at the top of the World Trade Center? Harsh.”

        Yeah, maybe. The roof of the WTC wasn’t that public a spot, and being nearly-naked-ized, even in public, probably doesn’t rise to the standard of IIED. It’s just that that’s the closest match of the traditional torts. I suppose “tortious use of superpower” could be created as a new tort. Mostly, I’m assuming that she didn’t start out on the roof, but went there to pick an argument. I normally wouldn’t want to reward the aggressor in a conflict, but the response seems over-the-line, if (I’m assuming) effective in getting her to withdraw from the field, as it were.

      • When you consult with the expert witness who tells you that failing to have adequate backups is a central tenet of IT that has existed for well over 50 years, perhaps your opinion on the comparative fault will change.

        I agree that “failing to have adequate backups is a central tenet of IT.” :)

        But seriously, this is a factual issue that we’ll just have to disagree on. I have a couple of degrees in computer science, but I’m only 30, so I can’t say for sure what was considered reasonable care in 1984. But I know enough (and can find enough contemporary evidence) to say that it could easily be made into a genuine issue of material fact.

        Has he converted them? (in the legal sense, I mean

        Yeah. “A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession.” Colavito v. NY Organ Donor Network, 8 N.Y.3d 43, 49-50 (2006). Since the clothes no longer exist, I think it’s safe to say that Firestorm has interfered with Smoak’s right of possession. The measure of damages would be the value of the clothes at the time of the conversion.

        being nearly-naked-ized, even in public, probably doesn’t rise to the standard of IIED

        Again, by the nature of soapsuds, she would be truly naked in short order. Anyway, this is almost exactly one of the illustrations of IIED in the Restatement:

        A is invited to a swimming party at an exclusive resort. B gives her a bathing suit which he knows will dissolve in water. It does dissolve while she is swimming, leaving her naked in the presence of men and women whom she has just met. A suffers extreme embarrassment, shame, and humiliation. B is subject to liability to A for her emotional distress.

        § 46, comment d.

    • Regarding backups: I partially agree with you. I work as a DBA and she should have backups, I am paranoid about my backups. But keeping in mind that this is int he past offsite backups may not have been common. Even if she did have offsite backups, they are almost certainly somewhat stale, likely by at least 24 hours and (at least in some industries) going back a week or more may not be unreasonable. So, even if we use comparitive negligence and limit her claim to what she would have lost if she had used a proper off-site backup system, we are still looking at up to 1 week lost work for most of the company and whatever downtime would reasonably be required to do the restore if she could. That is still substantial.

      Now, onto the other tort. He essentially destroyed her clothes. At the very least that is Conversion/Trespass to Chattels (Conversion if they were destroyed, trespass to chattels if he restored them in the end). This was done in a way that exposed her in public, so invasion of privacy seems reasonable. Battery is a little more touchy, but there was a case where slapping a plate out of someone’s hand was found to be more than nominal battery. This seems to go well beyond that so I think battery would at least be a good faith claim.

  2. Could turning Ms. Smoak’s clothing to soap suds hurt Firestorm’s case with damaging magnetic media? Exposing somebody who’s angry after losing all of her business records is pretty petty and spiteful. Could that be used to show that Firestorm might have had it in for Ms. Smoak, and wouldn’t have cared about damaging her business, even if he realized it was possible?

    • I think you’d have to prove that he could have had any idea that her business was in that building and in that specific part of the building. This being New York, there’s a pretty large area (even in the 1980s) of the city that her business could be in.

  3. Just as an FYI: The name “Felicity Smoak” is now being used for a character on “Arrow”–she’s the computer whiz at Queen Enterprises who Oliver keeps using to perform searches and hacks.

  4. “But seriously, this is a factual issue that we’ll just have to disagree on. I have a couple of degrees in computer science, but I’m only 30, so I can’t say for sure what was considered reasonable care in 1984. But I know enough (and can find enough contemporary evidence) to say that it could easily be made into a genuine issue of material fact.”
    I don’t have any degrees in computer science, which is irrelevant, as computer science degrees prepare one to be a programmer, not a systems administrator. On the other hand, I’ve been working in IT for over 30 years (I’m old enough to have learned COBOL, and CP/M.) I’m old enough to remember when a backup could be done (reasonably) onto floppy disks.

    “interfering with that person’s right of possession”
    That’s the catch. Her possession of garments is uninterrupted.

    “by the nature of soapsuds, she would be truly naked in short order.”
    Allowing her time to retreat to a private location. Now, had he transmuted her clothing to air or water, THEN it would be a match to the example in the Restatement. But he didn’t. He created a fear of something, not the actual something.

    • On the other hand, I’ve been working in IT for over 30 years

      That doesn’t actually make you an expert on what would have been reasonable backup policy for Smoak’s company, nor what the balance of fault would have been in this case.

      That’s the catch. Her possession of garments is uninterrupted.

      It’s not about possession of “garments” (not that a mass of soapsuds counts as garments anyway). It’s about possession of the specific personal property (i.e. her articles of clothing), which she has been deprived of.

      Allowing her time to retreat to a private location.

      That’s an assumption. We don’t know where her offices were in the building. She could just as well have encountered dozens of additional bystanders after the soapsuds wore off before she found a bathroom or her office.

      The bottom line is that whatever Firestorm’s liability for the destruction of computer records may or may not be, his act of destroying Smoak’s clothing was completely unjustified, criminal, and tortious. The notion that Smoak went to the roof to “pick an argument” is completely irrelevant, as is the notion that she was the “aggressor in a conflict.”

      • “It’s not about possession of “garments””
        Of course it is. Conversion is tort that relates to specific property. Her possession of the property in question was uninterrupted.
        There might be a case for trespass of chattels, but besides the unique legal question this would create, there’s the matter of proof. (The fact that Firestorm has the ability to do what was done isn’t proof that he done it.)

        “It’s about possession of the specific personal property (i.e. her articles of clothing), which she has been deprived of.”
        Or not deprived of, in the sense that she is in possession of them from start to finish.

        “‘Allowing her time to retreat to a private location.’
        That’s an assumption.”
        Yes, it is, but I think it’s a strong one. Because A) if the soapsuds were in actual danger of dissipating, Firestorm could have altered them back, and B) he could have, but did not, transition the clothes directly into something intangible, transparent, or both, and intentionally did not. This, to me, indicates a state of mind of wanting to cause Ms. Smoak to withdraw (in haste) rather than a malicious intent to cause her to be fully exposed.

        (Firestorm’s) “act of destroying Smoak’s clothing was completely unjustified, criminal, and tortious.”
        No, I disagree. First, it’s partially justified, as Ms. Smoak is accusing him of wrongdoing to cover up her own company’s grievous error. The reaction of forcing her to retreat is more than is needed, and therefore wrongful, but not “completely” unjustified. Second, I don’t think it’s criminal, for the simple reason that nobody thought to write a statute that applies, nor is there a common-law crime that would cover this situation, and things which are not prohibited are allowed. Finally, I don’t think that any of the common-law torts directly apply, either.

        “The notion that Smoak went to the roof to “pick an argument” is completely irrelevant, as is the notion that she was the “aggressor in a conflict.””
        Unless you’re trying to fashion an equitable solution in the absence of law on point.

        “That doesn’t actually make you an expert on what would have been reasonable backup policy for Smoak’s company.”
        The fact that I hold an advanced degree and professional certification in information security does, though. However, I’ll try a logical argument: IF it was reasonable to not carry out offsite backup storage, THEN the damage caused by loss of data in your primary datacenter is not serious, and conversely, IF the loss of data stored in your primary datacenter causes a substantial interruption of business, THEN it is not reasonable to decline offsite backup storage. There are cases where offsite storage is not needed: these include businesses which do not generate significant business records in the first place, businesses which can relatively easily reconstruct the the data from other sources, and businesses able to operate without access to the records. However, to bring a significant damage claim, Smoak’s company will have to claim that damages were significant, and therefore that having offsite backups was a reasonable (and necessary) precaution.
        Or approach it a different way. Not all records are of equal importance. Tax records and compliance with SEC regulations are of course very important, and customer orders and billing information (suppliers, on the other hand, can be relied on to refresh any missing data about payment due dates.) Now, how many water bottles to order for the employee break room, not so critical. So, how do professionals in the industry decide the importance of records? By how damaging to ongoing operations the loss of those records would be. The more devastating the loss, the more important the records are, and the more important the records are, the more precauations must be taken to ensure that the records are reliably backed up. So, once again, the more important the records are to the ongoing operation of the business, the more reasonable it is to store backups of the records offsite. Once again, we return to the problem that if the records are irreplaceable and critical to ongoing operations, then the company was negligent in not storing backups offsite.
        Note: These were NOT new concepts in the 1980′s.

      • “Or not deprived of, in the sense that she is in possession of them from start to finish.”

        She continued to have possession of what remained of them, but conversion can apply when the property is destroyed. It has been held for killing an animal belonging to another even though the owner retained physical possession of the animal and carcass at all times.

        “But he didn’t. He created a fear of something, not the actual something.”
        For one thing, I’m not sure I would consider someone clad in soap suds to be other than naked even if the soap suds were relatively opaque at that moment. But even if we didn’t consider exposed untilt he soap suds ceased to be opaque, it would be most likely to happen unless she were standing right outside her office and in that case we might easily have a False Imprisonment claim (taking a method for leaving, such as keys has been found sufficient for false imprisonment. Leaving someone confined to their office until help could bring clothes seems quite sufficient.)

  5. That’s just dumb. Soapsuds are not clothes. To where can she retreat, on top of a windy building? Where will she get more clothes?

    • “Soapsuds are not clothes. To where can she retreat, on top of a windy building?”
      If the soapsuds clothing, being less tenuous than cotton/wool blend or whatever they started out as, placed Ms. Smoak in fear of embarrassment to such a degree that she retreats from the field in search of privacy, there are several possible results. First, perhaps she retreats to a private location before the soapsuds dissolve. If so, no IIED. Perhaps the soapsuds dissolve quickly (due to the wind, if any, or other environmental factors) then there are two possible outcomes… one, she is left naked (IIED) or Firestorm changes it back into something more tangible (and opaque)… (no IIED). Now, if she wants to make a claim that there was IIED, she isn’t going to complain about soapsuds, she’s going to complain about naked. I didn’t see anything in the commentary thus far that suggests that naked was actual, just feared. Fear of being rendered nude in public is not IIED, no matter how reasonable the fear actually is (and it’s not even distressing to a subset of the population (if Ms. Smoak dabbles in naturism all bets are off.)
      So… there’s no theft here, I don’t see a conversion, and I don’t see a battery, and I don’t see an IIED. But, Firestorm’s actions feel wrongful, and IIED is the closest of the torts that doesn’t fit. The problem being that when the magistrates were articulating the common-law, there weren’t any super-herees, so the common-law they articulated doesn’t take super-heroes into account. (This is why it’s possible to disagree about the outcomes of these cases… where there’s no precedent, you have to either find the closest precedent that you can apply, or make stuff up. And judges don’t like making stuff up.)

      • If blowing smoke on someone can be called a battery then I think it seems ridiculous to suggest that using your powers to turn someone’s clothes into bubbles is not. The law seems more than flexible enough on this and I would suggest that we refrain from trying to find more and more flimsy ways for superheroes to not have committed crimes.

      • If Firestorm just said “I’m going to disintegrate your clothes into nothing in one minute. I advise you retreat, because if you haven’t retreated when I do it, you’ll be naked in public”, wouldn’t that be illegal?

        So how is it different if Firestorm instead turns her clothing into bubbles that will disintegrate after one minute all by themselves?

        And another angle: he set up a situation where she can either 1) perform an action of his choice (retreat) or 2) be in a situation which, had he inflicted it without any choice, clearly be a case of IIED. Is it really possible to avoid a charge of IIED by setting up a situation where the victim can avoid the distress by doing whatever you set up the situation to require him to do?

        If I were to set up a magical spell that only disintegrates the clothes of non-Christians, and cast this spell on someone, would it be a defense against IIED that he could avoid the emotional distress by converting to Christianity? That’s basically the same, except instead of having to retreat to avoid being naked in public, he has to convert to avoid being naked in public.

      • “If Firestorm just said “I’m going to disintegrate your clothes into nothing in one minute. I advise you retreat, because if you haven’t retreated when I do it, you’ll be naked in public”, wouldn’t that be illegal?”
        I don’t see a reason why it would be. What would you charge?

        “Is it really possible to avoid a charge of IIED by setting up a situation where the victim can avoid the distress?” Depends. If you set up a situation where there are two choices, both of which lead to harm or extreme distress, that’s different than if there are two choices, one with harm or distress and the other with none. In the first one, the distress is coerced, and this situation has an analog in the common-law: robbery. “Your money or your life” doesn’t set up the robber to claim “he chose to give me his wallet” because the choice wasn’t a free one. Go back, look at your hypothetical, and decide whether or not that case is REALLY the same.
        As for the general question, I think it would be a fair defense to suggest that when given a choice, people pick the one they consider best for themselves, or at least the lesser of two evils, and if choose to stay on a rooftop and argue rather than retreat because your clothes are malfunctioning, the emotional distress of clothes malfunctioning was your lesser of two evils, suggesting that the distress wasn’t, in fact, very extreme.

      • If you set up a situation where there are two choices, both of which lead to harm or extreme distress, that’s different than if there are two choices, one with harm or distress and the other with none.

        There is harm when he sets up a situation where she has to leave or be naked in public. She does, after all, have a right to be there; if Firestorm just forced her to leave and nothing else, that would be considered harmful.

        Firestorm could not legally force her to leave, nor could he legally force her to be naked in public. If he can’t legally force A, and he can’t legally force B, why can he legally force her to choose A or B?

      • “Firestorm could not legally force her to leave, nor could he legally force her to be naked in public. If he can’t legally force A, and he can’t legally force B, why can he legally force her to choose A or B?”

        Same problem as before… what crime do you charge someone with for “forcing” them to leave a place, if they don’t actually commit a battery or threaten violence?
        (in other words, he CAN legally “force” her to leave… he just can’t do it by any of the tortious methods. Example: Suppose I’m trying to take a picture, and some jackass thinks its funny to pop his head into the shot every time. Eventually, if he’s persistent enough, I’ll be forced to go somewhere else to take my photo… but he hasn’t commited a tort, because “photobombing” isn’t a tort.)
        I think Firestorm gets away with it not because he hasn’t done anything wrongful; he gets away with it because the wrongful act he’s committed doesn’t fall into any of the historical torts.
        And, as far as we know, he hasn’t done B.

      • Same problem as before… what crime do you charge someone with for “forcing” them to leave a place, if they don’t actually commit a battery or threaten violence?

        Imagine that Firestorm says, directly, “you leave right now. If you don’t, I’ll disintegrate your clothes”.

        That is clearly illegal. Disintegrating her clothes immediately (without the wait for the bubbles to go away) is clearly IIED–he’s telling her that if she doesn’t obey his command, he will commit a tort against her.

        In that scenario, he waits a minute, and if she doesn’t leave, he makes her naked directly. In the original scenario, he sets up a situation so that if she doesn’t leave, she will be naked. The original scenario is clearly illegal. How can the second one be legal?

      • “Imagine that Firestorm says, directly, “you leave right now. If you don’t, I’ll disintegrate your clothes”. That is clearly illegal.”

        What’s the charge? I’m pretty sure anyone can say that to pretty much anyone without being charged with a crime or found liable for a tort. (Perhaps it SHOULD BE, for people able to carry out the threat, but that’s a different argument.)
        I suggest you look up the story of Anne Royall and John Quincy Adams.

      • The reason pretty much anyone can say that without being charged with a crime is that we and they both know that they are not capable of carrying it out, so it’s not a real threat. I’m postulating that someone who 1) is capable of carrying it out and 2) does intend to carry through on his threat, is making the threat.

      • So what crime are you going to charge where someone makes a threat to someone’s property that is at least arguably real?

        If you touch someone without their permission, it’s a battery. If you threaten to touch someone, it’s an assault. If you touch someone’s stuff without their permission, it’s a trespass to chattels. If you threaten to touch someone’s stuff without their permission, it’s (what? fill in the blank.)

  6. “If blowing smoke on someone can be called a battery”
    That’s a big “if”.
    Leichtman v. WLW Jacor Communications, Inc 634 N.E. 24 697 (Ohio Appl. 1994) says “yes”, Golsorkhi v. Lufthansa German Airlines, 1997 WL 560013 (4th Cir. 1997) says “no”. I pulled these citations from the Torts E&E, 3rd Ed. The author, Joseph Glannon, goes on to comment:
    “The dubious reasoning in these cases reflects the discomfort courts encounter in extending a traditional tort like battery to new situations. If smoke is held a contact, how about obnoxious horn honkers, the odor of greasy french fries, or loud football spectators? Or, as one student nicely pointed out in my class, how about air pollution from Midwestern power plants? Taking matters further, if courts accept that smoke is contact, and that substantial certainty of that contact constitutes intent, will it recognize a right of second-hand smoke victims to use self-defense? These problems make courts reluctant to follow the seemingly inevitable logic of smoke as battery.”

    Battery requires touching. It is not at all clear that Firestorm’s power “touch” anything. Perhaps, had people with Firestorm’s power(s) been around when the common-law of battery was being established, they would have been included in the tort, but they weren’t, so Firestorm probably gets a pass. Of course, if Firestorm (or anyone else with similar capabilities) makes a habit of this sort of thing, the legislature can supplement the common-law by statute to address the issue, and when and if they do so, it becomes a matter of statutory construction.

  7. I’m not sure there would really be much of a case for the loss of data, let Aline a class action suit. In 1984 computers were largely intrusted, and even those that did trust them didn’t really know what to do with them.

    Suppliers, customers, banks, accountants, lawyers, the IRS… all would have needed paper copies of transactions and correspondence – especially since there was no internet to speak of. Even today, 30 years later, we need to keep boxes of paper for several years because the IRS does not accept digital records in audits.

    So, yes, the idea that Smoaks could lose *ALL* her business records ina magnetic incident is pretty much unthinkable and completely irresponsible. Add to that the problem of convincing a judge/jury of this in 1984 and I don’t think this would go anywhere.

    • Remember that Smoak’s company makes software. We could expect that it would be on the forefront of relying on computerized record keeping. In any case, the comic says the business’s records were wiped out, so they were wiped out. We’re here to figure out how the law would apply to the facts, not decide if we believe the facts or not.

      If it helps, you could interpret “my business’s computer records” to mean the source code and other essential data. If those were wiped out the business would be ruined just as well as if, for example, the human resources and payroll records were lost.

      the IRS does not accept digital records in audits.

      This hasn’t been true since at least 2011. And before that digital records had been allowed since at least 1997 (Rev. Proc. 97-22), though the IRS could require hardcopies to be produced from the digital records. I don’t know what the law was like in the 1980s, and I don’t want to speculate any further about tax law, since it’s a complex topic.

  8. A small error at the top: this happens in issue #29, not #20.

  9. How would Smoak prove that Firestorm actually perpetrated these acts? He basically gestures and things change. Couldn’t he simply say “prove I did it.” I assume if he were placed under oath he’d have to admit it, but could he have the case thrown out before then by saying, yes, I was there and yes, the roof changed to a magnet, but you can’t prove I changed it?

    As an aside, these are the dumbest uses of Firestorm’s powers imaginable. I know you work with the stories as presented, but magnets? Twice? There’s a clever idea here, but the execution is awful.

    • If there’s any possibility of criminal charges, then he doesn’t have to testify as to the matter. And if we’re actually talking about a criminal trial, he doesn’t have to testify at all.

    • You can never be forced to incriminate yourself in a U.S. court. That probably isn’t going to be much protection considering the large number of witnesses available and the fact that his powers appear to be rather well known.

      • But her lawyers have to prove that he DID do it, not that he COULD have done it. Imagine if this were not the case… Mr. Fantastic/Plastic Man would be on the hook for every pickpocketing in their respective home cities; the Invisible woman would be on the hook for every slip-and-fall where the person appeared to trip over nothing (and so would Black Cat and the Scarlet Witch… joint and several liability?); Karma would be on the hook for literally every crime and every intentional tort that happened; Professor X for every misappropriation of a trade secret; I bet I could go on for thousands of words here.

  10. The fact that they’re well known doesn’t mean he used them, though. If Superman punches Mongul, okay, we can see that. But if a roof near Firestorm turns into strawberry yogurt, how could anyone prove he did it? He waved his hands?

    Actually I think there’s some energy effect, so that might negate my idea.

    • Perfect proof is not required. Most issues in a civil trial only require proof by a preponderance of the evidence (“more likely than not”). Firestorm’s abilities are pretty unusual, even in the DC Universe. If Firestorm is fighting villains on a roof and the roof turns to lodestone, subduing the villains, then it’s more likely than not that Firestorm used his highly unusual power to turn the roof into lodestone, not that the roof was coincidentally turned into lodestone by one of the very few other people in the DC Universe capable of doing so.

      Anyway, it’s a moot point. Every time Firestorm used his powers in this scene he accompanied it with a little speech making it quite clear that he was the one doing the transforming. For example, here’s what he said in regards to the soap suds:

      Firestorm: “In the words of another super-hero…’I’ve had all I can stand..and I can’t stand no more!’ This oughta cool you down a little!” (points his hands at Smoak and a flash of energy emanates from them)

      Smoak: “My clothes! They’re…soap suds!”

      Firestorm: “Serves you right for wearing polyester!”

      Smoak (running away, covering her chest): “Witnesses! You’re all witnesses!” (referring to the at least eight other people on the roof apart from her and Firestorm: the two villains, four bystanders, and two police officers)

      Firestorm: “Yeah, and I’ll bet they like what they see!”

      • There’s other people with similar powers, or with powers sufficiently powerful and broad in scope to emulate Firestorm’s. (of course, most of them are bumming around Gotham or Metropolis rather than NY).

        I would imagine the cross-examination of any witness claiming that Firestorm did it running along the lines of “Do you know exactly how Firestorm’s power works?” (no) “Did Firestorm say he was going to turn Ms. Smoak’s clothes into soapsuds?” (no) “Did you see him touch Ms. Smoak or her clothing?” (no) “Are you aware of any other incident where Firestorm is alleged to have turned a woman’s clothing into soapsuds?” (presumably no).

        Then a motion to dismiss at the end of plaintiff’s case. Plaintiff has demonstrated by witness evidence that Defendant has A) waved his hands at her, and B) suggested that the spectators like what they say. Neither is actionable.

      • Previously in the series, Firestorm had disintegrated a woman’s clothes. Of course, she was a terrorist with explosives in her costume; Firestorm removed the clothing so he could quickly take the explosives away from people*.

        Even without that, I don’t think a judge or jury would look at the testimony of witnesses and decide it’s reasonable to believe it was anyone but Firestorm who transformed the roof or her clothing. They might find some other reason not to convict Firestorm of a crime, but they won’t doubt what he did.

        * Yes, he should have just disintegrated the explosives themselves; if you read this era of Firestorm you’ll generally come up with better uses of his powers than the writer.

  11. Screw civil action. If Firestorm had ripped off her clothes with his bare hands, he could be arrested on sexual assault charges. That he used his powers shouldn’t make any difference — it’s still an unwanted “touching.” And his words make it crystal-clear that this is happening because of his powers, or that he believes it is.

  12. One issue on IIED – soap suds are not completely opaque. Depending on the density, lighting and angles, they can be translucent or transparent. Different mixtures of soapsuds dissolve at different rates, and motion usually accelerates this. I don’t think we need for them to dissolve completely to get a jury to agree to this.

    I think that “tortuous use of superpowers” is a likely legal change in any juristiction with these powers. There are a lot of miscellaneous effects that the average person would interpret as some sort of harm. Of course, that doesn’t affect this blog, as that change would make things far too easy.

    Even with offsite backups, there will be some damages. Companies send backups offsite periodiaclly and they will lose all data since the last delivery. If they have paper records, which was quite common in the 80′s (heck, a lot of companies aren’t paperless nowadays), then they have the expenses of re-entering data into the computer. There may be lost business while they are restoring their systems. Even if no data is lost, harm has been done.

  13. There is a similar event in the New 52 series Static Shock.

    The main character has electrical powers and in the course of saving someone in an experimental plasma suit creates a large electric charge which destroys the all the electronics in about a hundred nearby cars, including things like smart phones, leaving a large traffic jam of disabled cars on the Brooklyn Bridge.

    The character thinks the people themselves will be safe before using his power and seems to know very well how his powers work before using them. But it looks like he didn’t think about what would happen to their electrical equipment.

    All of the people in the area are mad at him and one person says they are going to sue him.

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