Accidental Superpowers and Assumption of Risk

This post was inspired by Tim, who asked about liability for the transformations of Ben Grimm (The Thing) and Bruce Banner (The Hulk). We answer a lot of reader questions in our Mailbag posts, but this one was a big enough issue to need a post of its own.

The story of the two characters is similar in many respects. Both were involved in a scientific experiment that went awry, leaving the two changed in fundamental ways. Grimm’s skin was changed into a rock-like mass, rendering his appearance unusual, to say the least, and he struggled with this for years. Banner, on the other hand, found himself transformed into the Incredible Hulk, prone to almost incomprehensible savagery at the slightest provocation, leading to his exile from Earth and subsequent disastrous return. If any superhuman character might have a cause of action for bodily injury related to their powers, it would seem to be these two.

But there are key facts in their origin stories that change the liability situation significantly.

I. Ben Grimm, aka “The Thing”

The origin of the Fantastic Four‘s powers is told in Fantastic Four #1, November 1961. Dr. Reed Richards was planning a space mission and felt a sense of urgency because the Communists were apparently on the verge of launching their own. The story was published at the height of the Cold war, and this issue came out mere months after Cosmonaut Yuri Gagarin became the first human being to leave the earth’s atmosphere, so the story makes sense in that context.  Richards was discussing the flight with his team when the following exchange occurred:

Grimm: If you want to fly to the stars then you pilot the ship! Count me out! You know we haven’t done enough research into the effect of cosmic rays! They might kill us all out in space!

Susan Storm: Ben, we’ve got to take that chance… unless we want the Commies to beat us to it! I– I never thought that you would be a coward!

Grimm: A coward!! Nobody calls me a coward! Get the ship! I’ll fly her no matter what happens!!

If Grimm were then to act as a plaintiff—presumably against Reed Richards for organizing the flight without adequately researching it first—this little conversation would come back to haunt him. Why? Because assumption of risk is a viable defense in tort law. The basic idea is that if a plaintiff is aware of a specific risk related to a particular activity and engages in that activity anyway, a defendant would be absolved of any duty to protect the plaintiff from that particular risk. This is not any kind of blanket protection, and the specific nature of the risk generally needs to be contemplated by the plaintiff, but in Grimm’s case, there’s a good argument to be made that he had assumed the risk of flying Richards’ ship.

First, the comic indicates that in addition to being a test pilot and thus familiar with the risks associated with piloting experimental craft, he specifically knew about the risk of cosmic rays. Granted, he did not know that they would turn him into The Thing, but not only did no one else know this either, but everyone involved was consciously aware that they had no idea what the effects of these rays would be but that death was a distinct possibility. Besides, “I’ll fly her no matter what happens,” is a pretty broad statement.

Second, both Grimm and Richards seem to possess the same mens rea with respect to the accident. Assumption of risk will not protect a reckless defendant against a negligent plaintiff, but it may well protect a reckless defendant against a similarly reckless plaintiff. The idea here is that the law does not want to protect a party that acted with a lower degree of care over one who acted with a higher degree, and when the playing field is equal, the argument that everyone involved knew the risks of the activity and voluntarily engaged in it is a lot stronger.

Third, Grimm was not a mere passenger. He was a pilot. As such, he had a significant role in the planning and execution of the test flight, and was in fact the only person even potentially capable of steering the craft out of danger. So unlike a passive participant or even someone participating in an event organized by others, Grimm had ample opportunity to mitigate the risks involved both before and during the incident. It’s even theoretically possible that the Storm siblings might have a cause of action against Richards and Grimm as the joint organizers of the project! However, neither of them seems to have been affected negatively, so their “damages” may be nominal,

Ben Grimm knew as well as anyone what he was getting into. He knew that the trip involved the risk of cosmic rays, and he knew that exposure to those rays posed a risk of serious bodily injury or death. No one seems to have known more about the risks than he did, even Richards, though that’s more a matter of shared ignorance than anything else. What Richards did was arguably incredibly foolish, but another famous Ben had some choice words about following fools.

II. Bruce Manner, aka The Incredible Hulk

Bruce Banner’s story contains a significant difference. Banner is characterized as one of the world’s most brilliant scientists, rivaling if not surpassing Reed Richards and Tony Stark. Banner was involved with a Defense Department project to develop a gamma ray bomb or “G-bomb” when he was accidentally exposed to gamma rays, which due to a fluke in his genetic structure transforms him—periodically—into the rampaging Hulk.

Sounds pretty similar to Ben Grimm, right? So far, yes. But there’s a wrinkle which makes all the difference. In the case of the Fantastic Four, just about everyone involved was acting recklessly, and no one intended for anyone to get hurt. But Banner was actually a victim of attempted murder. The way the story is told, just before the test of the G-bomb, Banner noticed that a teenager had breached security and was inside the blast zone. He ordered the test to be delayed and ran to get the kid out of the way. Banner was able to get the kid to a protective trench when the bomb went off, exposing him to gamma rays. But the reason the bomb went off is because Igor Drenkov, a Russian agent, ordered the test to continue, hoping that Banner would die in the resulting explosion. Assumption of risk will protect a defendant against a reckless plaintiff, but it will not protect a defendant that intended for harm to befall the plaintiff. Indeed, Drenkov could be subject to civil and criminal liability, as attempted murder is a serious felony.

But Banner would probably not be able to sue the government, as he was the organizer of the project and the government is likely not liable for the actions of enemy infiltrators. Furthermore, depending on the nature of Banner’s employment, either the Federal Employee Compensation Act, the federal equivalent of workers’ compensation, or the Veterans Affairs Administration would provide compensation for his injuries, as he sustained them while executing his duties as a government employee. So he would theoretically be entitled to some money, though only in proportion to his medical bills (non-existent) and expenses related to mitigating his disability (good luck). In practice, he’s going to have trouble proving his damages, and as the FECA and/or VA would be an exclusive remedy, no other recovery would be available with respect to the government. He’s still free to sue Drenkov though.

III. Conclusion

We’ve seen here that, as in all cases, the facts are really important, and a single conversation, document, or other changed fact can result in a wildly different outcome, potentially saving—or costing—a party enormous amounts of money. Finding these facts and putting them in their proper context is a lot of what litigation attorneys do for a living, and the amount of money at risk is one reason many charge as much as they do.