Superheroes, the Duty to Rescue, and Negligence

A reader (hi Dad!) has asked about whether a superhero can be sued for not coming to the rescue. This is actually a good opportunity to talk about a few points of tort law that we haven’t covered yet. These include the concept of a duty to rescue and the standard of care in rescue situations. We’ll also talk a bit about the way the law tends to view issues of causation.

Note that we’re talking in the abstract here; specific states will interpret and apply these doctrines differently.

I. The Duty to Rescue

It’s 2:00 AM in Gotham City, and a bunch of thugs are surrounding an old man getting off the subway in a sketchy part of town. The leader is slapping a pipe in his palm. Then, with a screech of tires, the Batmobile pulls up! Batman jumps out, looks straight at the thugs, and… goes across the street to get coffee.

Huh?

Superheroes of all stripes tend to operate under the assumption that it is their duty to protect civilians and society–sometimes even reality itself–from villainy. Morally speaking, they’re probably correct. But legally, not so much. The basic assumption in tort law is that there is no duty to rescue. This is important  because a defendant cannot be held liable under any negligence theory unless the defendant breached a duty which caused cognizable harm to the plaintiff. Where there is no duty, there can be no negligence. So the fact that Batman looks the other way in the above hypothetical may make him a bad person, but it probably won’t subject him to liability.

There are, however, a few exceptions to the general rule, some of which are at least potentially applicable. First, if a defendant has himself created a hazardous condition, he has a duty to rescue those who are endangered by it. Mundane examples include construction workers digging a hole in the road or lumberjacks felling trees: both have a duty to rescue those endangered by their activities. This only makes sense. So if Spider-Man sets a web trap for the Green Goblin, he has a duty to rescue any civilians who get caught in it. More interestingly, Iron Man probably has a duty to rescue people endangered by his sentient armor. But in either case, there has to be some positive action by the superhero to create the duty, i.e. Batman didn’t put the thugs there, nor cause them to attack the old man, so this exception won’t apply to most supervillain attacks. Pissing people off is not going to count as “creating a hazardous condition,” as people are responsible for their own intentional acts unless threatened with immediate death.

Second, and this is probably the thornier issue for our heroes, there is a duty to rescue when a “special relationship” exists between plaintiff and defendant. The term has different meanings in different contexts, but what the law means by this is some relationship where one party is taking responsibility for the other in some way. Parents have a special relationship with their minor children, as do common carriers with their patrons, spouses with each other, property owners towards invitees, etc. But for our purposes, the special relationship most at issue is going to be the one between emergency response personnel and the public. Emergency responders, e.g. paramedics, firefighters, police officers, etc. have a duty to respond to and rescue those members of the public that require their assistance. Could Superman be considered an emergency responder?

Probably not. Emergency responders are only required to provide assistance within the scope of their employment. So police officers are not required to rush into burning buildings, nor are firefighters required to apprehend criminals, and neither one is required to do much of anything when they aren’t on duty. So unless Superman has some kind of official position with an emergency response agency, which would definitely make him a state actor, finding some legal duty to respond to emergencies is going to be pretty difficult.

This is not necessarily a bad result either. Superman and other superheroes are theoretically capable of responding to just about any emergency one could care to name. Certainly more than they actually do respond to. This idea is actually being explored in the ongoing Superman: Grounded story arc. If everyone who Superman could save has a cause of action against him for not doing so, Superman would never have time to save anyone.

More to the point, the legal system is generally interested more in setting the minimum bar for civilized behavior than in enforcing a standard of virtuous conduct. Many things that are morally blameworthy are not punishable by law, and this is how we want things to be. The legal system is overwhelmed enough as it is dealing with serious breaches of community life to have to deal with minor marital spats and irritating but innocuous playground insults. The law cannot make people good, but it can do something about trying to prevent them from doing evil and punishing them when they do.

II. Negligence During Rescue

There is another exception to the general rule that there is no duty to rescue: if Batman does decide to save the old man by the subway, he is responsible for acting in a reasonably prudent manner while he does it. Nevermind the fact that assailing a bunch of pipe-carrying thugs isn’t terribly reasonable to begin with: once a person steps in to rescue, they voluntarily assume that duty. That includes possessing the necessary skill and experience to effect a rescue. With Batman that’s probably a no-brainer, but a rookie superhero–or untrained civilian–who steps in to rescue someone is risking a negligence suit if, for example, the old man is injured during the rescue attempt.

That raises another related issue: is a superhero liable for trying to rescue someone and either screwing it up or just failing? Is Spider-Man liable for Gwen Stacy’s death?

The general answer is, as always, “It depends,” but the specific answer to the Gwen Stacy question is “Probably not.”

The duty to act reasonably is not a duty to guarantee a good outcome. It is merely to do what a reasonable person would do under similar circumstances. If doing what a reasonable person would have done results in a bad outcome, that’s too bad, but it doesn’t make the defendant liable for the result. Again, there must be a breach of the duty of care for there to be liability, and if the defendant has acted reasonably, there is no breach and thus no negligence.

So what about Gwen Stacy? The Green Goblin threw her off a bridge (reports are contradictory as to exactly which), and Spider-Man shoots out webs to catch her as she falls. He succeeds, but it turns out that as it isn’t the fall that kills you, it’s the sudden stop at the end, it doesn’t necessarily matter whether you hit concrete or are stopped short by a web: whiplash is bad for you. Gwen dies as a result of the whiplash caused by Spider-Man’s rescue attempt. We’ve got the Word of God on that one (see?).

But that’s just the thing: because Spider-Man did not throw Gwen off the bridge, he is not responsible for putting her in danger–not legally anyway–and because it appears that there really was nothing he (or any reasonable person) could do to save her, the fact that his rescue attempt is the immediate cause of her death is probably not going to subject him to actual liability. While it’s true that we are capable of tracing remarkably attenuated strings of causation, a concept that DC has actually explored, the law is not generally willing to do that, cutting off proximate causation with what is reasonably foreseeable at the time the act or omission occurs and when another cause intervenes. While it is probably foreseeable that Peter Parker acting as Spider-Man would put his loved ones in jeopardy, the intentional torts and crimes of others (e.g. supervillains) are viewed as superseding causes which defeat the causation element of any negligence tort for which Spider-Man/Parker could be liable.

More generally speaking, if a superhero does what a reasonable person would have done in attempting to fight a supervillain, it is going to be very difficult to find them liable for the damage they may cause while doing it. As many supervillains pose an immense risk to the persons and property of others, if a superhero uses as little force as possible to destroy or incapacitate the supervillain, causing property damage or even loss of life is probably in keeping with the standard of care. So when Doomsday is rampaging across three states headed for Metropolis, leaving a swath of destruction behind him, a reasonable person would probably do whatever it took to stop him, and a reasonable person with super powers would use them as necessary to do so. There are limitations, but these are basically the same proportionality limits that apply to everyone. Using lethal force is never a reasonable thing to do when there is no risk to a person’s life, so if the Joker threatens to vandalize a museum, killing him is both a tort and a crime. Doesn’t really matter how you kill him either: heat vision isn’t going to get treated any differently than a shotgun or Batarang. Taking a more serious step, if the Green Goblin is threatening to kill Gwen Stacy, it would be reasonable to kill him, but it would not be reasonable to bring down the entire bridge, with all the people on it. Then again, if Darkseid is threatening to destroy all of reality, it’s hard to argue that anything in the attempt to prevent that would be unreasonable.

It’s also possible that some superheroes could be subject to strict liability under a variety of theories, but that’s a discussion for another post.

III. Conclusion

The question of tort liability for superheroes declining to engage in or actually engaging in rescue attempts is interesting, but it appears that finding such liability is going to be difficult unless a superhero is either 1) an official employee of a emergency response agency, or 2) acts carelessly or with unreasonable force to eliminate the threat. In the absence of those, our heroes are safe from legal liability, even if there are unresolved moral issues.