Category Archives: torts

Who’s paying for all of this?! Thor: the Dark World Part 2

(This guest post was written by Christopher Chan, who is currently studying for his Master of Laws at University College London.  He is an aspiring barrister in London, England looking to practise in the areas of insolvency and restructuring.)

In the first part of my examination of Thor: the Dark World, I looked at who the University of Greenwich (“the Claimant”) could sue for the property damage it suffered as a result of the battle between Thor and Malekith in the final act of the film. Here, we take a look at whether the Claimant may still be compensated for its loss by suing the employer of the film’s protagonists, S.H.I.E.L.D., under the doctrine of vicarious liability.

The conclusion reached in my previous analysis was not a good one for the Claimant. There is a claim against Malekith, but serving his estate in the realm of Svartalfheim with a claim form would be difficult. Suing the God of Thunder presents the same problem, but there is also the additional concern of public authority immunity from negligence claims. Ms Foster, Mr Selvig, Ms Lewis and Mr Boothby (“the Additional Party”) all had a hand in the loss suffered by the Claimant as well, but the amount of assets they own would make recovery from them pointless. It would seem then that the University would have to pay for the renovation of their institution out of their own pocket.

Luckily, the University of Greenwich may still raise a claim against S.H.I.E.L.D. as the employer of the film’s protagonists. This would be under the doctrine of vicarious liability, which makes an employer liable for the torts committed by its employees. This is a very attractive option for the Claimant because not only is S.H.I.E.L.D.’s primary residence on Earth, it possesses a substantial fortune to recover from. In the second part of my analysis of Thor: the Dark World, I look at how the University of Greenwich can argue the doctrine of vicarious liability in English tort law in making S.H.I.E.L.D. liable for the negligence of Thor and his companions.

 

Vicarious liability

Simply put, vicarious liability makes an employer liable for a tort committed by the employee. The tort in question here is negligence. The doctrine requires that (i) a tort was committed by the employee; (ii) that the employee can be said to be in a relationship of employment with the employer; and (iii) that the tort was committed in the course of employment. In the first part of my analysis, I had established already the strong case that the Claimant has against the defendants for negligence. The following discussion will focus on the second and third requirements of vicarious liability as they relate to Thor and the Additional Party.

 

An employment relationship

It may seem obvious who the employee and employer are between the two parties, but determining whether such a relationship existed when a tort was committed has proven to be a complex matter for the Courts. The starting point will be something as simple as whether there is a contract of employment in existence. But beyond the hard evidence available, the traditional test has been one of control: an employer is someone who could not only tell an employee what to do, but also how to do it. Deviations are made from this general test depending on the facts and circumstances of each case. Take an employee who possesses special skill, such as the ability to summon lightning. An employer may well be able to tell Thor what to do with this skill, but giving orders on how to do so is another matter entirely!

In fact, the traditional test of control has shown its limits in applicability over the years. In the case of Cassidy v Ministry of Health [1951] 2 KB 343, an employer was found liable for the torts of its employees despite the fact that the latter had special skill and thus an absence of control. The modern approach of whether there is an employment relationship takes a holistic view; the courts will take a look at the entire relationship. Certain elements will undoubtedly be of particular significance, such as the degree of control, who has the right of appointment and dismissal, method of payment, and the provision of work equipment (Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497).

The film does not provide much evidence as to what sort of relationship S.H.I.E.L.D. has with Thor or the Additional Party. We know from Avengers Assemble that Thor is at the very least an Avenger, and Mr Selvig was working for S.H.I.E.L.D. at the beginning of that film before he was brainwashed by Loki. However, Mr Selvig was interned in a mental hospital by the time of Thor: the Dark World, so his employment with S.H.I.E.L.D. may have terminated. Finally, there is no indication as to whether Ms Foster, Ms Lewis and Mr Boothby work for S.H.I.E.L.D. either, despite sharing similar goals.

Regardless, let us not have something as silly as the lack of evidence halt us from our analysis. Were an employment relationship to be assumed, the Claimant must next prove that the tort committed by Thor and the Additional Party was done in the course of employment.

 

In the course of employment

It is not enough that S.H.I.E.L.D. was the employer at the relevant time; the tort must also be committed in the course of employment. So an employer cannot be made liable for a tort committed by an employee off the clock. Answering this question does however bring us back to the consideration made in the first part of my analysis concerning acting in a public versus private capacity. Remember, the UK Courts have shown a reluctance to impose a duty of care on a public authority for policy reasons. The preliminary question then is whether S.H.I.E.L.D. is a public authority.

The publication history of S.H.I.E.L.D. has shown that control over the organisation has shifted between the United Nations and the United States government depending on the storyline. Fortunately, both bodies are considered public authorities, which suffices for the purpose of this discussion. Thus, as employees of S.H.I.E.L.D., as a public body, there is a viable defence for our heroes to be exempt from liability for policy reasons.

Nevertheless, let us consider the possibility that S.H.I.E.L.D. is a private body. In determining this component of vicarious liability, the Courts have traditionally adopted the Salmond test. This test states that a tort will be committed in the course of employment if it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master. The Courts have however demonstrated a tendency to go beyond this test by looking at how closely connected the tort is with the employment.

The relevant principle to be applied concerning the close connection test is whether the tort is so closely connected to the employment, the employer can be said to have introduced the risk of the wrong (Lister v Hesley Hall Ltd [2001] UKHL 22). The tort our heroes are liable for is the property damage they caused in the course of battling Malekith. The mandate of S.H.I.E.L.D. is the defence of Earth from paranormal and superhuman threats. It is therefore likely that Thor and his companions would be found acting in the course of their employment given the close connection found between the purpose of their conduct and the raison d’etre of S.H.I.E.L.D.

It can be concluded then that if S.H.I.E.L.D. is considered to be a public body, then our heroes have acted in the course of their employment sufficient to absolve themselves from liability. But if S.H.I.E.L.D. were a private body, then it would be vicariously liable for the torts committed.

 

Conclusion

Taking stock of the conclusions made in the first and second parts of my analysis, the University of Greenwich is advised to raise a claim against S.H.I.E.L.D. for the vicarious liability of Thor and the Additional Party. The defendant will argue vigorously that they should be exempt from liability on public policy grounds, but failing such a defence, the close connection test will prevent the employer from distancing itself from the actions of the film’s heroes. Claiming against S.H.I.E.L.D. is the most attractive option given the vast fortune it possesses, and the practical advantages of serving a claim form on a defendant that maintains a primary residence on Earth.

Who’s paying for all of this?! Thor: the Dark World Part 1

(This guest post was written by Christopher Chan, who is currently studying for his Master of Laws at University College London.  He is an aspiring barrister in London, England looking to practise in the areas of insolvency and restructuring.)

In the final act of Thor: the Dark World, our hero faces off against Malekith in a bid to save the world from total darkness. Predictably, the supervillain is no match for the God of Thunder, but the real victim of the clash is the University of Greenwich. The battle that ensued on the campus of this historical institution resulted in an astronomical amount of property damage. Since the event giving rise to damages occurred on English soil, the applicable law for a claim would be English tort law. This will be the first part of an analysis looking at whom the University of Greenwich (“the Claimant”) may sue under the tort of negligence for loss suffered. The second part will consider whether it may be more sensible to sue S.H.I.E.L.D. as the employer of our superhero.

 

A claim in negligence

When an ordinary citizen harms another, whether it is an injury to the body or damage to one’s property, a private claim can be made under the tort of negligence for compensation. To succeed in a claim of negligence, the Claimant will have to prove a number of elements to satisfy the Court.

The first element is the existence of a sufficient connection between the Claimant and the defendant. This is known in law as owing a duty of care, which is another way of saying one owes a responsibility to another person. In establishing this connection, the traditional principle the English Courts have used is the neighbour principle. This tells us that people must take reasonable care not to injure others who could foreseeably be affected by their action or inaction (Donoghue v Stevenson [1932] UKHL 100).

But it is not enough that a duty was present, the defendant must have breached that duty as well. An objective standard is used in assessing whether the duty has been breached, which means that the Court will not consider particular character traits of the defendant. The defendant will be measured against the standard of the reasonable person who is undertaking the task or activity in the course of which the negligence is said to arise.

Next, it must be shown that the breach caused the loss suffered by the Claimant. In proving this element, the Claimant will have to show that but for the acts of the defendant, the injury suffered would not have occurred. It must also be demonstrated that where there is a chain of events that led to loss, nothing new occurred that would break that chain. This latter consideration is a test of legal causation.

Finally, after all of the above elements have been proven, the defendant may still escape liability if he/she can mount a sufficient defence. An example would be where the Claimant had voluntarily placed itself into a situation where harm might result; the Claimant is said to have voluntarily assumed the risk that resulted in the loss suffered.

 

Malekith – Causation in law

Let us assume that the ruler of the Dark Elves left an estate for the Claimants to claim against. A duty of care is presumed to arise because the two parties are close together, just like two drivers on a road. Establishing that this duty has been breached will be fairly simple given Malekith’s smashing entrance onto the university grounds. But for the defendant crashing his mother ship into the Old Royal Naval College, the property damage that resulted would not have occurred and so causation is also proved.

Can Malekith be said in law to have caused the entirety of the damages suffered by the Claimant, or just the loss resulting from the parking of his mother ship on George Square? Legal causation is a bit trickier to determine because although the entirety of the damage can be strictly said to have occurred because of Malekith’s conduct, some of the resulting loss may have been caused by a new event that interrupted the chain of causation. Indeed, it was the arrival of Thor and the ensuing battle that caused the majority of the damage. If the defendant can prove that the superhero’s appearance broke the chain, then the extent of his liability will be limited. We turn next to what the addition of the God of Thunder to the factual matrix means for the Claimant’s action.

 

Thor – Duty of care owed by public authorities

Our protagonist poses an interesting case given that he may be considered a rescuer, which means that his arrival would not break the chain of causation for the claim against Malekith. This is because the intervention of a rescuer is considered by the Courts to be a foreseeable, natural and probable result. Even if the rescuer were careless in his rescue, it’s unlikely that the Court would allow Malekith to use this as an excuse for the damage.

But what about claiming against Thor for the property damage? The role that our hero plays parallels situations involving the police, which is a public authority. In general, a public authority can owe a duty of care, but for policy reasons no such duty would be imposed (Smith v Chief Constable of Sussex Police [2008] EWCA Civ 39). The UK Courts have maintained a consistently strong stance prohibiting the imposition of a duty on police on the basis that they should be given discretion in how to conduct their operations. This is a hot topic of contention in the UK, with cases being appealed to the European Court of Human Rights on a number of occasions (Osman v The United Kingdom Case No 87/1997/871/1083).

The strength of the Claimant’s case against Thor will therefore hinge on whether the defendant is considered to have acted in a public or private capacity. If the former were to be assumed, then it would be unlikely for a negligence claim to succeed for policy reasons. However, if Thor were considered to have acted in a private capacity, the Courts will likely find him liable in negligence for the property damage caused, albeit leniency afforded to him for acting as a Good Samaritan rescuer.

 

Jane Foster / Erik Selvig / Darcy Lewis / Ian Boothby – Additional parties

It may be hard to raise a claim against the God of Thunder due to the difficulties involved in traveling to Asgard. Rather, it may be more sensible for the Claimant to sue the Asgardian Prince’s companions instead.

There should not be a problem for the Claimant in recovering from any of these four parties; none of the elements that need be proved show signs of any contentious points arising. However, there may be practical reasons why the Claimant would not wish to pursue a claim. For one, the public policy defence available to Thor may also be applicable to his companions. A more simple reason would be that any damages recovered from the defendants would be nominal, reflecting only a fraction of the substantial loss suffered. There are no indications in the Marvel films that would suggest that these particular defendants own a considerable amount of personal assets. The property damage they helped cause would have likely reached millions of pounds; it is improbable that even the combined assets of all four defendants would amount to a few hundred thousand pounds.

 

Conclusion

The chances for the University of Greenwich to win a lawsuit look grim. Malekith is certainly liable for at least a part of the property damage suffered by the Claimant, but suing him will be difficult. We’re not sure if the supervillain has left an estate for the Claimant to recover from, and then there are the practical difficulties of traveling to the realm of Svartalfheim to serve a claim form.

Travel difficulties are equally applicable to the situation with Thor. What’s more, the God of Thunder may escape liability entirely if the Courts accept that he was acting in a public capacity. Ms Foster, Mr Selvig, Ms Lewis and Mr Boothby can also rely upon this defence, but for financial reasons, the Claimant would unlikely want to sue them anyway.

However, all is not lost for the university; they may still be able to sue S.H.I.E.L.D. under the doctrine of vicarious liability. In the second part of my analysis, I will be looking at the strength of the Claimant’s case against Thor’s employer.

Age of Ultron, Part I

(This post contains spoilers for Avengers: Age of Ultron.  You have been warned.)

Continue reading

Marvel’s Agents of S.H.I.E.L.D.

For most of the first season of Agents of S.H.I.E.L.D. I wondered what on earth I could write about.  Comparatively little of the series raised any interesting legal questions, at least ones that could be answered in any kind of concrete way based on the information presented in the series and the Marvel Cinematic Universe.  For example, S.H.I.E.L.D.’s jurisdiction is still kind of an open question, with the agency operating freely in some countries but not others.  This suggests some kind of treaty, but there just aren’t enough details to do more than speculate.

And then, finally, near the end of the season I received an email from a reader asking some great questions.  Massive spoilers for Agents of S.H.I.E.L.D. below, so if you haven’t seen season one and don’t want to be spoiled, stop reading now.

Continue reading

She-Hulk v. Paparazzi

Today’s post was inspired by a question from the enigmatically-named Master182000, who recently reminded me that I hadn’t gotten around to it.  The question points to a 1985 John Byrne-era She-Hulk story (in Fantastic Four #275) in which She-Hulk is photographed while sunbathing on the roof of a tall building (maybe the Baxter Building).  The paparazzi used a helicopter to take the photos, the propellor wash of which blew away the towel she was covering herself with.  As Master18200 summarizes:

Later that day [She-Hulk] (in alter-ego form) and her friend track down the chopper, intimidate the pilot, and confront the photographer, who owns a tabloid called “The Naked Truth”. She confronts him, telling him since She-Hulk is a member of the SAG [as well as other show business unions] and images of her require her release before going to print. The photographer balks, claiming that She-Hulk is a ‘public figure’ and thus images of her are in the public domain and thusly don’t require She-Hulk’s release to print. He carries this argument forward until She-Hulk appears and crunches the photographer’s safe.

This led to the following questions:

1) Which party’s interpretation of the law is more accurate?
2) At what level of celebrity does a person lose 100% of their ‘media rights’ or become ‘public domain’ as the photographer suggests? Is this issue a settled matter at Federal law level or State law level?
3) Aren’t there issues with the way the pictures were taken? I don’t know much about aviation laws, but that chopper was pretty close to the building, close enough for She-Hulk’s clothes and stuff to be blown around.

I’ll take them one at a time.

I. So Who’s Right?

Well, technically neither of them.  There’s nothing special about being a member of SAG that would grant someone more rights than usual with regard to their image, unless SAG has negotiated an agreement with the other party (e.g. a movie studio).  Presumably the tabloid has no agreement with SAG or any other union.

On the other hand, public figures can still have an expectation of privacy, and the roof of a 30 story building, while somewhat exposed, is still a place where most people would have a reasonable expectation of privacy.  Furthermore, She-Hulk was covered up initially and only became exposed because of the close approach of the helicopter, which was intentionally done to blow away her towel.  The First Amendment wouldn’t protect that kind of action.

So She-Hulk is right in that the photographs can’t be published, but not for the reason she offers.

II. Public Figures, Invasion of Privacy, and the Right of Publicity

The notion of a person being a “public figure” mostly has to do with slander and libel, the standard for which for statements about a public figure is higher than for statements made about ordinary people.  Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).  As Chief Justice Warren described it in his concurrence, public figures are those who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.”  Curtis Publishing, 388 U.S. at 164.  As between federal and state law, this is a federal First Amendment issue.

Is She-Hulk a public figure?  Maybe.  It’s hard to get a sense of just how famous any particular comic book character is within their own universe (with a few exceptions such as Superman).  But even if she were, that would only matter for purposes of libel and slander.  And as the sleazy tabloid owner said, the pictures are accurate depictions of what happened, so truth might well be a defense to any libel or slander claim anyway.

But that’s not the claim She-Hulk should be bringing.  What she should be claiming is invasion of privacy (which, when it involves nudity, is a crime in many states) and violation of her right of publicity.  These would be state law claims.  All of this would be sufficient to claim significant damages if not prevent publication of the photos outright (although the courts are pretty loathe to engage in censorship).

III. Aviation Laws

Nowadays the regulations regarding helicopter flights in and around Manhattan are fairly strict.  There are no-flight corridors, weekend bans, and other rules.  But these are mostly new developments, often in response to noise concerns.  Thirty years ago things were a little more free-wheeling, as far as I can tell, and private helicopters may well have been free to more or less buzz buildings.  Of course, had been an accident it would likely have been very easy to establish the tabloid’s negligence or recklessness.

IV. Conclusion

In the US the paparazzi can get away with a lot because of the stringent protections of the First Amendment.  But (perhaps unsurprisingly) ambushing someone with a helicopter in a private space and forcibly removing their clothing is beyond the pale.  She-Hulk (as attorney Jennifer Walters) could probably have succeeded in court where She-Hulk (as She-Hulk) failed using traditional Hulk methods.  In the end, the pictures were published anyway, but the developer messed up the skin color so that the pictures didn’t look like She-Hulk.  A court case might have meant a more satisfying result.  At the very least the damages award (and possible criminal sanctions) might have driven the tabloid out of business.

Superman and the Duty to Rescue on Bloomberg Law

Bloomberg Law has produced a short video about my piece on Wired.com about Superman and the duty to rescue in Man of Steel.  Check it out!

Truth, Justice, and the American Rule

I have a piece over at Wired.com on Man of Steel and the duty to rescue.  There are some moderate spoilers in the article.  All in all it was a pretty good movie, though not without its flaws (<- serious spoiler alert!).  I recommend checking it out.  We’ll have more on Man of Steel here at Law and the Multiverse later this week.

Iron Man 3: Property Law and Medical Experimentation

We started talking about Iron Man 3 on Monday with some questions sent to us by a lucky reader who caught a sneak preview. Now we’ll take a look at two more issues: property law and medical experimentation.

Without giving too much away, we can say that at one point in the movie, Stark gives out his home address on live TV. Shortly thereafter, the press and bad guys show up and things start to get a bit hairy. The movie seems to assume that this would not have happened if Stark hadn’t given out his address. That strikes us as. . . dodgy. Further, the movie takes some inspiration from the Iron Man: Extremis storyline, and though the details of Extremis seem to vary quite a bit from the source material, both involve experimental medical injections. So we’ll talk about those issues as well. Continue reading

Law and the Multiverse Online CLE Programs

For many attorneys it will soon be annual CLE reporting season.  If you need CLE credits, we may be able to help.  We have partnered with Thomson West in the past to produce four online, on-demand programs with CLE credit available in most states:

What Superheroes and Comic Books Can Teach Us About Constitutional Law

Real-Life Superheroes in the World of Criminal Law

Everyday Ethics from Superhero Attorneys

Kapow! What Superheroes and Comic Books Can Teach Us About Torts

For a 20% discount on any or all of these programs, use code KABLAM2013.

And if you missed the IP and the Comic Book Superhero program presented by the ABA IP Section, it is available for pre-order as an audio CD for delivery on May 17th.  It may be available as an on-demand program later, I’m not sure.

Finally, if you’ve already taken these courses or are looking for something different, keep an eye out for a new program (presented by Thomson West) to be announced soon.

Quick Questions from the Mailbag

In today’s mailbag we have a couple of quick questions from a couple of Christophers.

I. Batman and Bats

The first Christopher had two questions about Batman and actual bats:

In Batman: Year One, and in the film Batman Begins, Bruce has that little gadget that essentially summons swarms of bats, which always looks really cool. But is he responsible for any of those bats dying? Because you just -know- some of them got smushed, or died somehow in the confusion. Also, if someone gets rabies or otherwise gets seriously injured by said bats, is that Bruce’s responsibility?

A. Injuries to the Bats

With regard to the bats themselves: it depends on the kind of bats and the laws of the state.  There are some federally protected bat species, and messing with an endangered species in that way would almost certainly run afoul of the Endangered Species Act, which  makes it a crime to “harass, harm, pursue, … trap, capture, or collect [an endangered species], or attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).

Even if the bats weren’t endangered, state animal welfare laws may prohibit what Batman was doing.  If any of the bats were “unjustifiably injured”, for example, then under New York law that would constitute “overdriving, torturing, and injuring animals.”  N.Y. Agriculture & Markets Law § 353. Whether summoning a swarm of bats to confuse or evade criminals makes any resulting bat injuries unjustifiable is a difficult question to answer, but one has to wonder if someone has smart and well-connected as Bruce Wayne couldn’t have come up with a less risky alternative.

B. Injuries to Others

By ‘others’ I mean innocent bystanders.  We’ll assume self-defense, defense of others, or some other justification applied to any injuries inflicted on the criminals.

Ordinarily the owners of wild animals (such as bats) are strictly liable for injuries caused by those animals, assuming the injury is a result of the kind of danger that the animal poses.  Bites and rabies transmission from bats certainly fall into that category.  The trick is that Batman isn’t necessarily the owner of these bats.  There is a bat cave on the Wayne Manor property, but I don’t remember if it’s clear that these particular bats came from there.  Merely exercising some degree of control over the wild animal may not be enough to result in strict liability.

However, even if a more typical negligence standard were applied, Batman could still lose out.  He may be justified in using force against his attackers, self-defense will not necessarily prevent a negligence claim.  Would a reasonable person exercising ordinary care summon a swarm of wild bats in a crowded city?  I think a reasonable person might have opted for a less risky method.

II. Animal Transformations

The second Christopher had a question about the magician Zatanna turning people into animals:

I was reading Zatanna and she has a habit of turning people into animals (briefly, in one case, just to get rid of annoying guests.).  Later her father transforms someone into an inanimate doll?  This seems like assault … Can she be arrested and/or sued?

I think the answer is yes, such a transformation would be both a tort and a crime.  If the transformation were effectively permanent—it could not be treated and the responsible magician refused to undo it—it would be murder, particularly if the animal form was truly an ordinary animal and not the person’s mind trapped in an animal’s body.  From a legal point of view, the person would be dead.  Their cardiopulmonary and brain functions would have permanently ceased, since their body had been effectively destroyed.

In the case of a temporary transformation, that would be a very serious injury, albeit one that the victim recovered from.  That would affect the sentencing or damages, but it would still be a crime.  You might think: hey, she changed the victim back, no (permanent) harm, no foul, right?  But what if Zatanna had performed the transformation and then been killed or incapacitated?  Or if Zatanna and the victim had been separated?  We don’t want to encourage her to take the risk that she might not be able to change someone back.  This is similar to why factual impossibility is not a defense to an attempted crime: the defendant could not actually have committed the crime they were trying to, but we don’t want to let them off the hook just because they got lucky.

And then there’s the psychological harm of being turned into an animal, even temporarily.  So even a temporary transformation would be a criminal assault or battery (depending on the term the particular state uses) and a tortious battery.