Nobody Foresees the Lizard

We received a great question about The Amazing Spider-Man and liability for the damage done by the villain.  Spoilers below!

Jonathan writes:

The question: who is responsible for the damage done by the Lizard? Is it Parker, Connors, Oscorp or a combination of all of them?

The Lizard wouldn’t exist without Peter’s formula. This was his dad’s, presumably developed while working for Oscorp. Connors is shown working with Peter in the Oscorp lab, though Peter is not an Oscorp employee. Oscorp was pushing Connors to go to human trials against (Connors’s) expert advice.

This is a great question because it touches on a lot of issues in both torts and criminal law, though we’ll concentrate on the tort issues.  We’ll break it down into a few different parts, beginning with the most obvious candidate, Connors himself.  Since the movie is set in New York, we can use New York law.

I. Dr. Connors

Dr. Connors seems like the most likely candidate for two reasons: first, he (as the Lizard) was the direct cause of the damage and second, he made the ultimate decision to inject himself.  As I recall, although Oscorp was pushing Connors to go to human trials, they did not pressure him to use it on himself—Oscorp’s plan was to use it on unwitting subjects at a veterans’ hospital (itself a violation of not just a few laws and scientific ethical norms).  As you might suspect, the fact that the side effects of the injection were a surprise for Connors means that the analysis is different for his first injection versus his subsequent doses.

The first time that Dr. Connors injects himself with the lizard DNA serum he certainly didn’t expect to be turned into a rampaging monster.  He hoped he would regrow his arm, and I suppose he was aware of the risks that the earlier animal trials had shown (i.e. death).  He wasn’t aware of the monstrous transformation risk, since as I recall the two ‘successful’ lab rats didn’t mutate until after Connors had already injected himself.  So we can conclude that Connors didn’t intend the damage when he injected himself for the first time, but that doesn’t get him off the hook.  There’s still the question of whether he should be liable for his actions while transformed into the Lizard and the question of negligence.

A. Liability as the Lizard

The first time Connors transforms he seems to be fairly mindless.  He vaguely has a plan to stop Ratha from taking the serum to the veterans’ hospital, but we don’t seem too much evidence of conscious thought.  I would be willing to give him the benefit of the doubt and say that he was not acting consciously and so wouldn’t be liable.  Alternatively, he could claim a defense of incapacity or even intoxication.  Although he injected himself voluntarily (which usually defeats a defense of intoxication), he had no reason to expect the side effects, which is more akin to involuntary intoxication.

The situation is different during subsequent transformations, however.  The Lizard talks, makes plans, and adapts to changing circumstances.  It’s much more reasonable to hold Connors liable for his actions as the Lizard after his first transformation.

B. Negligence

In New York as in many states, “in any cause of action founded upon negligence, a successful plaintiff must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by the injured party.” Becker v. Schwartz, 46 N.Y.2d 401, 410 (1978).  These are the three common elements of negligence: duty, breach, and proximate cause.

The question of the existence of a duty of care toward another is very complex: “the existence and scope of an alleged tortfeasor’s duty, at the threshold, is a legal, policy-laden determination dependent on consideration of different forces, including logic, science, competing socioeconomic policies, and contractual assumptions of responsibility.” Milliken & Co. v. Consolidated Edison Co. of New York, Inc., 84 N.Y.2d 469, 477 (1994).  Luckily, we can dispose of the issue simply by considering the element of breach.

Assuming that Connors owed a duty to the people he injured, it is unlikely that he breached that duty by failing to exercise reasonable care the first time he injected himself with the serum.  As mentioned, the side effects of the serum were completely unexpected even by Dr. Connors, who was an expert in the field and had conducted animal trials with similar serums.  So he probably isn’t liable for negligence with regard to his first injection, but after that he knew the risks and so would likely be liable.

II. Parker and Oscorp

Clearly neither Peter Parker nor Oscorp intended for Connors to become a crazed monster, so their liability, if any, would probably turn on negligence.  But as we’ve seen, Connors likely wasn’t acting negligently when he injected himself.  It stands to reason, then, that Parker was not acting negligently by giving Connors the formula, since he had even less reason to suspect such side effects.  And while Oscorp pushed for human testing, they didn’t push for Connors to try it on himself, so it seems even further removed from any potential breach of a duty of care.

Furthermore, we can consider the element of proximate cause.  In order to be liable in negligence, the defendant must have been the proximate cause of the plaintiff’s injury.  But what is proximate cause?  Proximate cause (also called ‘legal cause’) is how the law ‘cuts off’ the chain of responsibility.  It is not enough that the defendant’s actions be a literal cause of the injury.  After all, one could claim that if Connors hadn’t been born then the harm wouldn’t have happened, therefore Connors’s parents (and grandparents and so on) are responsible.  This is true in some sense, but the law would like to assign fault to a cause that is closer (i.e. more proximate) to the injury.

In New York there are many tests or factors to consider in deciding whether or not something is the proximate cause of an injury, but the most common one, as in many other states, is foreseeability.  “[T]he rule is well established that for a negligent act to be regarded as the proximate cause of an injury to another, the injury must be one which could reasonably be foreseen. In other words, the proximate cause must be one which in view of all the surrounding circumstances might readily have been foreseen by an ordinarily prudent man as likely to result in the injury.”  Ward v. State, 81 Misc.2d 583, 588 (Ct. Claims N.Y. 1975).

On the other hand, “if, with the benefit of hindsight, it appears highly extraordinary that defendant’s act should have brought about the harm, the act will not be considered a proximate cause.”  Mack v. Altmans Stage Lighting Co, Inc., 98 A.D.2d 468, 470 (Sup. Ct. App. Div. 1984).  It seems to safe to say that it was highly extraordinary that Connors’s own action brought about the harm.  Thus, Parker’s and Oscorp’s actions, which were even further removed from the harm, certainly couldn’t be a proximate cause.

III. Conclusion

In sum, Parker and Oscorp are probably in the clear with regard to the Lizard, although Oscorp may have other crimes to answer for.  Connors may not be liable for the damage caused during his first transformation because injecting himself was probably not legally negligent, and he may not have been in control of himself during the first transformation.  But whether because he was conscious during subsequent transformations or because he knew the risks of the serum, he would be liable for his actions during subsequent transformations.