Category Archives: Fantastic Four

I Married a Skrull!

Today’s post is about Johnny Storm (aka the Human Torch) and his marriage to Alicia Masters (actually the Skrull Lyja posing as Masters).  Ken wrote in to ask “Was Johnny Storm’s marriage to Lyja valid?”

This isn’t the only time that this scenario has occurred in comics.  Ken also asked about the marriage between Namor the Sub-Mariner and Dorma (actually Llyra in disguise).  In that case a quirk of Atlantean law came to the rescue: because Namor thought he was marrying Dorma, his marriage was to her and not Llyra, even though Dorma was not present at the ceremony.  I’m not sure what that says about the nature of consent in Atlantean law, but we’ll stick with the Johnny Storm/Lyja case, since New York law is a bit easier to research.

I. Void and Voidable Marriages

Perhaps unsurprisingly, the answer is that their marriage would be voidable.  N.Y. Domestic Relations Law § 7 states

A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto: … 4. Consent[ed] to such marriage by reason of force, duress or fraud

There’s a distinction between a marriage (or other contract) that is voidable and one that is void.  A void marriage (defined in §§ 5-6) is one that never exists at all, typically in cases if incest or bigamy.  A voidable marriage is a marriage until a court declares it void, and so can theoretically remain a legitimate marriage if the parties want it to be.  So in this case if Johnny Storm and Lyja agreed that they really did love each other after all (certainly Lyja claims to), then they could stay married, though there would be a lot of paperwork to correct.

Alas, love does not conquer all here, and Johnny wants none of it.  So could he prove a case of fraud?

II. Fraud

New York law treats the kind of fraud sufficient to void a marriage as similar to that which would void a contract.  “Marriage is a civil contract, and the courts will annul such a marriage like other contracts, where the consent of a party to it has been procured by fraud or the misrepresentation of a material fact.”  Lembo v. Lembo, 193 Misc. 1055, 1057 (Sup. Ct. 1949).  Further:

Where the ground relied upon for dissolution is fraud, the fraud contemplated by the statute must be of a nature and import so serious that it destroys the essence of the marriage contract and of a magnitude that the person asserting the fraud as a ground for dissolution would not have entered the marriage contract, if, in advance thereof, the misrepresentations had been revealed.

Di Pillo v. Di Pillo, 17 Misc.2d 673, 675 (Sup. Ct. 1959).  It seems pretty clear that lying about one’s identity as an alien at war with the human race and impersonating another person already known to the other party are sufficient.  Johnny would not have married Lyja had she been honest about her identity.  Indeed, he likely would have attacked her on sight.

III. An Alternate Approach

Another approach would be to argue that the marriage was void from the beginning (as opposed to voidable) because human/Skrull marriage is not legally recognized in New York.  Our prior post about this was a bit controversial, but our conclusion there was that interspecies marriages (e.g. Clark Kent and Lois Lane) may not be legal under current law.  Since the Storm/Lyja marriage occurred in 1987, long before even same sex marriage was legalized anywhere in the United States, we feel even more comfortable asserting that a human/Skrull marriage would not be legal (again, assuming that the marriage laws on Earth 616 were the same in 1987 as they were in the real world).

IV. Conclusion

Whether because a human/Skrull marriage is legally impossible or simply because Storm was tricked into marrying Lyja, Johnny would have no trouble getting out of the marriage.  There might still be legal consequences, however.  A question for any tax attorneys or accountants in the audience: if Johnny had filed his tax return as married/filing jointly and claimed the standard deduction, would he have to repay any tax if the marriage was later declared void?  If so, could he seek compensation from Lyja?

The Invisible Woman and Indecent Exposure

Today’s post was inspired by William, who pointed us to Amazing Spider-Man #657.

In the issue, Spider-Man reminisces with Mr. Fantastic, the Invisible Woman, and the Thing about the recently deceased Human Torch, each one telling a story about him.  The Invisible Woman’s story involves a fight with members of the Fearsome Four.  While searching for the Four, Spider-Man and the Invisible Woman find the Human Torch signing autographs.  Seeing an opportunity to bring him down a peg, Spider-Man sneaks up and pantses the Human Torch.  Sure enough, the Fearsome Four choose that moment to show up.  With the Torch too embarrassed to fight pants-less, the situation looks grim until the Invisible Woman realizes how she can turn the tables.  Using her power to make things invisible, she effectively removes the pants of the three Fearsome Four members, who are then easily rounded up by Spidey and the Torch.

As the police take the villains away everything looks like it will turn out okay until the Invisible Woman (aka Sue Storm) explains her trick.  The officer taking her statement says “Ms. Storm, I’m sorry, but if what you say is true, I’m afraid I’ll have to bring you in as well.”  Asked what she’s being charged with he replies: “Indecent exposure.  She pantsed three men in public.  That’s a serious offense.”  And sure enough she gets arrested and booked, though apparently she avoids conviction.

So, is rendering someone’s pants invisible indecent exposure?  Or if it isn’t, is at least some other kind of crime?  Luckily we know the story took place in New York, so we can refer to the law there.

I. Indecent Exposure

In New York the crime commonly called indecent exposure is called “exposure of a person.”  Exposure of a person is a violation, less serious than even a misdemeanor, and is (basically) defined thus:

A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed.

N.Y. Penal Law § 245.01.

As you can see, exposure is defined in terms of the exposed person being responsible for the exposure, rather than being exposed by another person.  So could Sue Storm be guilty of exposure of a person?

Probably not.  As mentioned, the statute is worded in terms of the nude person exposing themselves, not being exposed by another.  The best theory we can come up with is that, if the villains could claim a defense of duress (i.e. that they did not intend to expose themselves but rather were compelled to do so), then perhaps Sue could be liable under the theory that someone who compels another to commit a crime is liable for that crime.  But this is a weak argument because the villains didn’t remove their pants under Sue’s compulsion; rather, she rendered them invisible all on her own.

So if she can’t be brought up on charges of indecent exposure, are there any other options?

II. Assault, Invasion of Privacy, and Emotional Distress

Ordinarily a person who exposes another would be guilty of assault, since normally the only way to do so is to forcibly remove their clothing.  Even someone with the power of telekinesis could still be charged with assault, since even an intangible force can be enough to constitute assault.  See, e.g., Adams v. Com., 534 S.E.2d 347 (Ct. App. Va. 2000) (holding that shining a laser pointer at a police officer constituted assault).  But the Invisible Woman’s power doesn’t seem to touch an object at all but rather to warp light around it.  So she might not be guilty of assault, either.

Scraping the bottom of the barrel we have the torts of invasion of privacy and intentional infliction of emotional distress.  The villains could theoretically try to sue Sue (heh) in civil court, but it would be a hard sell.

III. Defenses

Even if a prosecutor could bring an exposure or assault charge under some theory (or if the villains sued in tort), Sue would have an excellent claim to self-defense and defense of others.  The villains attacked without provocation and clearly intended to kill the Invisible Woman, the Human Torch, and Spider-Man.  Since the heroes would have been justified in killing the villains, something as mild as a minor public humiliation would certainly be a reasonable force.

IV. Conclusion

On the whole this is a pretty good issue (for those interested, it’s collected in Spider-Man: Matters of Life and Death), but we aren’t surprised that Sue apparently managed to beat the rap.

Superhero Corporations II: Piercing the Corporate Veil

So a couple of days ago we talked about superhero corporations and respondeat superior. This time we’re taking a look at the opposite situation, where corporate actions can result in personal liability for the owners of a corporation.

I. Basic Doctrine

This is significantly less common than respondeat superior liability, as the whole point of corporate entities is limited liability. Corporations were invented to permit investors in trade missions to limit their liability to the money they had actually invested—ships were lost pretty frequently, so this was a big deal. Without the joint stock company, the Age of Exploration just wouldn’t have happened. These let the risk of investment be spread not only among multiple investors, but across multiple voyages. So while a particular ship may go down with all hands, but not only can the creditors not proceed directly against the investors for anything owed, but the debtors can use the profits of another voyage they’ve funded to make good the debt. Everybody’s happy.

The basic point here is that while it’s pretty easy for a company to be liable for the actions of its employees, it’s very difficult for an executive or owner to be personally liable for the actions of the corporation. When that happens, it’s called “piercing the corporate veil”. In US law, there are a series of factors that courts look at to determine whether the veil should be pierced. This isn’t a checklist, and it’s not the kind of thing where if you have more than half of the factors you win. Even a single factor can result in piercing if it’s bad enough, particularly when we’re talking about undercapitalization, i.e. when the investor hasn’t actually put enough money into the corporate entity to cover its debts. The courts do recognize that the point of corporations is to limit liability, but they aren’t very happy with people who create corporations solely for that purpose, particularly when the risk to be avoided is less just the ups and downs of business than avoidance of a known debt. The law lets you limit your liability for business purposes, but it won’t let you play games.

II. Superheroes and Piercing the Corporate Veil

So then, might it be that actions of various superhero corporations could result in personal liability for the superheroes that own them? Again, this is a fact-intensive analysis. But going with the examples above, we can again see something of a spectrum.

Remember, now we’re talking about something the corporation does, not something that the superheroes do as a result of their connection to the corporation. Products liability is perhaps the most obvious example, but it can come up with contracts, too. Basically, we’re now thinking about a situation in which the corporation, as a corporation, has gotten itself into trouble, completely independent of any superhero activities.

First, Batman. Here it seems very unlikely that the actions of Wayne Industries could result in personal liability for Wayne himself. Again, we’re talking about a multinational conglomerate with legitimate business operations in multiple continents, most of which have absolutely nothing to do with Wayne personally. The corporation is certainly well capitalized, and Wayne doesn’t appear to be doing much in the way of co-mingling of funds, though he may be guilty of siphoning away corporate assets for personal purposes as part of his Batman sideline. Still, the facts would probably have to be related to Batman in particular for that last one to matter, in which case Wayne would be personally liable anyway.

Tony Stark seems to be in almost the same position. Here we’ve got a major corporation, and though his identity as Iron Man is well-known, Stark Industries appears to be a healthy, well-run defense contractor with little in the way of corporate irregularities. Piercing again seems unlikely.

But just as with respondeat superior, the Fantastic Four seem a lot more susceptible to this. Fantastic Four, Inc. exists almost solely to let them operate as superheroes, and it doesn’t do all that much aside from licensing Reed’s patents and manufacturing goods based on them. There’s also a sense that personal and corporate assets may not be kept very distinct, in that while both Wayne and Stark are said to be independently wealthy apart from their role in the corporation, the FF’s money seems to be entirely based on the corporation. Wayne and Stark both own mansions, boats, sports cars, etc., and frequently show off their personal wealth. The FF live a lot more modestly and while they really don’t seem to worry about money, a lot of their material comfort really does seem to be linked directly to their corporate activities. So if FF Inc. is sued for products liability, this isn’t going to look good. It’s entirely possible that Reed and potentially the rest of the family could be on the hook personally.

III. Conclusion

Piercing the corporate veil is strongly disfavored by the courts, and plaintiffs really need to show that the corporate investors/owners are trying to pull off some kind of manifest injustice before the courts are going to put the investors/owners on the hook personally. But it can happen, particularly in situations like the Fantastic Four where the corporation is basically just a front for personal activities.  With Wayne and Stark, by contrast, it’s unlikely to happen unless Wayne or Stark personally ordered or oversaw something seriously illegal.

Superhero Corporations I: Vicarious Liability

There are several superhero characters that also happen to be executives of major corporations. Batman, as Bruce Wayne, is the head of Wayne Industries. Tony Stark runs Stark Industries. Reed Richards is in charge of the Fantastic Four’s corporate activities. The list goes on.

A question we haven’t talked about much yet is whether the activities of our heroes can cause liability for their respective corporations and vice versa. There are distinct issues here. The first is “respondeat superior” a Latin phrase meaning “Let the master answer” which is a species of vicarious liability, and “piercing the corporate veil“. The former can create liability for employers as a result of the actions of employees. The latter can create personal liability for executives and owners of a corporation for actions of the corporation. As one can see, these might be issues for our heroes. This time, we’re going to take a look at respondeat superior.

I. Basic doctrine

The basic concept here is that if an employee does something wrong while in the service of his employer, the employer is responsible even if the employer did not directly authorize the action. The most common example is if an employee is driving at the behest of his employer and gets in an accident. If the employee is still within the “course and scope” of his employment, the employer will be liable.

This may at first seem a little unfair, as what we’ve got here truly is “vicarious liability,” i.e. one person being liable for the actions of another. But there are two main justifications for the doctrine. First, if an employee is acting on behalf of his employer and screws something up, it seems a little unfair to let the employer off without any consequences. The employer certainly stood to benefit by having the employee make the trip, so it only stands to reason that they should also bear the risk of that trip. Second, a person acting on behalf of his employer has the potential to get in far, far more trouble than acting on their own. Returning to the driving example again, an eighteen-wheeler can cause vastly more damage than even a big SUV, but most people don’t use eighteen-wheelers to commute. There’s just no cause for an individual to use one of those things in most circumstances, as almost nothing a private individual might want to do requires moving that much stuff around. But businesses can and do need that kind of hauling capacity and so regularly put those vehicles on the road. The risk there is not just to other drivers, but to the owner of whatever stuff is in the trailer. Same goes for moving things around a warehouse: it’s entirely possible for a single trip with a forklift to be worth more than the employee operating it will make this year and next. So the other reason for making employers responsible for the torts of their employees is that employers (or their insurers) are the only ones likely to be able to afford to pay for said torts.

This is true even with insurance, by the way. Most personal auto carriers don’t even sell policies with limits in excess of $300,000 per person, but $1 million is pretty much the default commercial auto liability limit. And it goes up from there. Commercial excess policies with $25 million limits are pretty commonplace, but personal umbrella policies rarely go beyond $1 million.

One last thing to understand here is the distinction between corporate and personal assets. Take Tony Stark as an example. He’s the single largest shareholder in Stark Industries, so he “owns” a significant chunk of the company. But that isn’t the same thing as owning corporate assets. Stark has an interest in the company and as a shareholder has the right to vote on corporate actions. But he does not have any interest in corporate assets as such. This is part of how corporations work. So when we talk about respondeat superior, we mean that a plaintiff can sue Tony directly and potentially get his stock in the company, as those are his personal assets, but also sue the company directly, and have access to corporate assets. So depending on the size of the verdict, it’s theoretically possible for a plaintiff to wind up both owning a company and being owed a big check from the company. This isn’t likely to happen to any of the characters we’re talking about, as Wayne Industries etc. are all worth billions, but it’s not that uncommon an occurrence in small businesses with few assets.

II. Respondeat superior and superheroes

With that basic explanation of the doctrine, let’s turn our attention to whether superhero executives can create liability for their corporations. The answer here is going to be highly fact specific, turning mostly on whether or not the superhero was acting on behalf of the corporation at the time. Fortunately, our superheroes form something of a spectrum illustrating almost the entire spread of possibilities here.

On one end, we’ve got Batman. Yes, Bruce Wayne is the president and largest shareholder, and yes, he uses corporate assets to be Batman. But his activities as Batman are almost completely distinct from Wayne Industries wider corporate activities. It’s a multinational conglomerate with its fingers in almost everything, and only a tiny fraction of its resources are being redirected to Wayne for his Batman activities. More to the point, Wayne goes to some lengths to hide this from the other shareholders, who would probably vote against this sort of thing if they knew about it. Wayne Industries as such does not really stand to gain anything by Batman’s activities either, aside from the general benefit to everyone that is law and order. So in Batman’s case, it seems unlikely that what he does could subject Wayne Industries to liability, as nothing he does really seems to be within the course and scope of whatever employment he might have there.

In the middle is Iron Man. Tony Stark is the largest shareholder of Stark Industries (or something like that), and people know that he’s also Iron Man. But again, Stark Industries does a lot of things which have nothing to do with Iron Man, and Tony’s employment with the company—when he even is employed—doesn’t seem to have anything to do with being Iron Man. Granted, until he went public with his identity, Iron Man did do a lot to serve Stark Industries’ interests, e.g. protecting corporate assets, but once Stark went public, unless Stark Industries explicitly puts Iron Man on the payroll as such or explicitly puts serving as Iron Man in Tony’s job description, the case for vicarious liability is murky at best. It’s possible that it could be there, especially if Iron Man is acting in the company’s interest, but it isn’t a slam dunk case most of the time.

On the other end of the spectrum is Reed Richards and the rest of the Fantastic Four. Fantastic Four, Inc. is the corporate entity that they use to sell things based on Reed’s patents and to generally fund their activities. But that’s about it. Not only is FF, Inc.’s business pretty much entirely about the Fantastic Four, but it’s mission is pretty explicitly to let them do what it is that they do. Vicarious liability should be pretty easy to establish here.

III. Conclusion

So, as we see, respondeat superior is something that at least some superheroes are going to have to worry about. Next time we’ll take a look at the flip side and piercing the corporate veil.