Category Archives: torts

The Duty to Rescue, Again

Posted on September 21, 2012 by | 7 comments

(Note from May 8, 2020: Subculture for the Cultured is no longer online, so the links in this post have been changed to use the Internet Archive Wayback Machine.)

Our latest monthly column at Subculture for the Cultured is up. It was inspired by this question from Joe:

I have a question about Avengers Academy #37, which just came out.

It’s the final battle with supervillain Jeremy Briggs, whose transmutation powers are overpowering the team. He takes out X-23 by turning her sweat to acid, which is clearly killing her, so she stabs him in an artery [Ed. note: actually, Finesse pushes X-23’s claws into him]. He begins to bleed to death, which breaks his concentration enough that he can’t use his powers.

Teammate Finesse, who has powers similar to Taskmaster and therefore an expert knowledge of the human body, begins to tie off his wounds. But he begins gloating that he will just come back and try again, and so she drops the cord and let’s him die.

Nobody sees this as her teammates were distracted (it’s not exactly clear with what, but they have clear reaction shots showing they didn’t witness the conversation), so as far as anyone knows after X-23 stabbed him there was no way to save him. Later a police officer taking statements says it looks like self-defence and he doubts there would be charges.

1. Finesse’s action does seem like clear self-defense. But could Finesse be charged with anything if it comes out that she had a chance to render medical assistance and did not?
2. Does it make a difference that she started to render medical aid and then withdrew it?
3. Finally, does Finesse’s knowledge of anatomy and first aid skills give her an extra obligation to help someone who is dying, compared to someone had only a vague idea of what to do?

We’ve talked about the duty to rescue twice before, but this is a really great fact pattern.  Any of our law student readers who are currently in a torts class should find this particularly interesting.  Check it out!

7 Comments

Posted in sftc columns, torts

Dodging Missiles, Attracting Liability?

Posted on August 27, 2012 by | 11 comments

(Note from May 8, 2020: Subculture for the Cultured is no longer online, so the links in this post have been changed to use the Internet Archive Wayback Machine.)

Our latest monthly column at Subculture for the Cultured is up. It was inspired by this question from Promethee:

I’m watching Ironman 2 (I know, I’m late) but something that seems to happen quite a lot (and come to think of it happens in like every other superhero movie) is the scene where the hero is being chased by some sort of tracking missiles. At that point, the hero flies at some sort of building and when really close, takes a tight turn. The missiles can’t turn that tightly, so they fly into the building destroying it and killing a bunch of people. Of course, whoever fired the missiles has plenty of liability coming at them. But what about the hero who performs the maneuver?

Check it out!

11 Comments

Posted in criminal law, Iron Man, mailbag, movies, sftc columns, torts

Nobody Foresees the Lizard

Posted on August 6, 2012 by | 30 comments

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

Continue reading →

30 Comments

Posted in criminal law, movies, Spider-Man, torts

World War Hulk: Front Line I

Posted on June 18, 2012 by | 63 comments

[amazon_link id=”0785126708″ target=”_blank” container=”” container_class=”” ]World War Hulk[/amazon_link] is a five-issue limited series from 2007 telling the story of the Hulk’s return to Earth after the events of [amazon_link id=”0785120122″ target=”_blank” container=”” container_class=”” ]Planet Hulk[/amazon_link] in 2006. The basic story is that in Planet Hulk, a majority of the Illuminati, consisting of Iron Man, Mr. Fantastic, Black Bolt, and Dr. Strange, decide to deal with the “Hulk problem” by sending him into space. The Hulk is tricked onto a starship set for another planet, but the Hulk winds up on the planet Sakaar instead of the peaceful world he was intended for. He winds up fighting a bunch of people, getting married to the local princess, only to have the better part of the city—and princess—blown up when the starship he arrived on explodes.

Hulk is pissed. About the trickery, about the exile, and now about the death of his wife. He plots revenge and returns to Earth. World War Hulk picks up there.

[amazon_link id=”078512666X” target=”_blank” container=”” container_class=”” ]World War Hulk: Frontline[/amazon_link] is a parallel story about Ben Urich and Sally Floyd, as they continue reporting for Front Line, the newspaper they started back in the [amazon_link id=”078514949X” target=”_blank” container=”” container_class=”” ]Marvel Civil War.[/amazon_link]. Like in the Civil War, the writers use the Front Line story to talk about the effects of the super-powered conflict on everyday people. So, for instance, we see the effects of the evacuation of Manhattan on the poor and indigent. As the more mundane side of the story, this is where some of the more interesting legal questions arise, and we’ll take a look at those here. Continue reading →

63 Comments

Posted in civil rights, international law, torts

The Avengers: Who’s Gonna Pay for That?

Posted on May 11, 2012 by | 43 comments

As some have already noted, the damage done to Midtown Manhattan in The Avengers could easily top $160 billion, all told (here’s the original source of that estimate).

That’s a lot of money. By comparison, as the link notes, the total impact of the September 11th attacks was about $83 billion and Hurricane Katrina cost about $90 billion. This is about as much as the two of those put together.

So… who’s gonna pay for all that?

Well, we talked about this subject generally back in December 2010, and the analysis has changed little since then. But The Avengers gives us a chance to apply those general principles to a particular set of facts. Continue reading →

43 Comments

Posted in insurance, international law, movies, torts

Harvey Birdman, Attorney At Law (Ep. 1-4)

Posted on April 30, 2012 by | 13 comments

Harvey Birdman, Attorney At Law is one of the original Adult Swim programs, similar in style and concept to the truly classic Spage Ghost Coast to Coast and produced by the same company. But instead of re-purposing old Hanna Barbera cartoons to make a surrealistic talk show, they’re re-purposing old Hanna Barbera cartoons to make a surrealistic legal sitcom of sorts.  In this post we’re talking about the first four episodes of the first season, which are available on DVD. Continue reading →

13 Comments

Posted in criminal law, criminal procedure, family law, television, torts

Peter Parker, Con Artist?

Posted on April 19, 2012 by | 126 comments

The inspiration for today’s post comes from Greg, who asks:

During the Civil War storyline, for a brief time Peter Parker “outed” himself as Spider-Man. … J. Jonah Jameson wanted to sue Peter for fraud because he sold pictures of Spider-Man to the Daily Bugle under  what [Jameson] claimed were false pretenses. My question is, would that hold any water?

The facts for this question come from Amazing Spider-Man #533 (which you can buy reprinted in The Amazing Spider-Man: Civil War).  Specifically, a lawyer for the Bugle tells Parker that the Bugle is suing him for “misrepresentation, fraud, breach of contract and several other related charges” and they are seeking both compensatory and punitive damages of at least five million dollars.  So, how worried should Parker be about this?  Pretty worried, in our estimation.  Let’s take a look at each charge in turn.

(Before we get started, we’ll mention that there would have to have been a contract between Parker and the Bugle for the photographs because, as an independent contractor, Parker owned the copyright in his photos and would need to license or sell the copyright to the Bugle via a contract before they could be printed.  See this post for more on that.)

I. Misrepresentation

Because both breach of contract and fraud are also listed, we think that misrepresentation is being used in the contract law sense rather than the tort law sense.  In the contract law sense, misrepresentation is also known as fraud in the inducement (i.e. a misrepresentation made in order to induce the other party to enter into a contract).  This should not be confused with the tort of fraud, which we’ll get to shortly.

In New York, “To recover under a theory of fraudulent inducement, the plaintiff must prove: (1) misrepresentation of a material fact; (2) falsity of the representation; (3) scienter; (4) reasonable reliance; and (5) damages.” Creative Waste Mgmt., Inc. v. Capitol Env. Servs., Inc., 429 F.Supp.2d 582, 607 (S.D.N.Y. 2006).  “Scienter” is a fancy legal word for “knowledge,” and in this case means the defendant has to make the misrepresentation knowingly.

So, has the Bugle likely got a case for fraud in the inducement here?  Let’s go through the elements.

(1) Misrepresentation of a material fact.

Right off the bat we run into a small snag: did Parker ever explicitly claim that the photos were unstaged photos of a different person?  Maybe, maybe not.  But even if he didn’t, his silence may be enough.

“[W]hen dealing with a claim of fraud based on material omissions, it is settled that a duty to disclose arises only when one party has information that the other party is entitled to know because of a fiduciary or other similar relation of trust and confidence between them.” Creative, 429 F.Supp.2d at 607.  Such a relation can be imputed by the “special facts doctrine,” under which “the courts impose a duty on a party with superior knowledge of essential facts to disclose those facts where nondisclosure would make the transaction inherently unfair. For this doctrine to be applicable, the plaintiff must prove that (1) one party has superior knowledge of certain information; (2) that information is not readily available to the other party; and (3) the first party knows that the second party is acting on the basis of mistaken knowledge.” Id.

Clearly, Parker had superior knowledge of Spider-Man’s identity.  Jameson had no clue who Spider-Man was and certainly didn’t suspect Parker.  The information was not readily available, as demonstrated by the fact that quite a few people, Jameson included, had tried and failed to determine Spider-Man’s identity.  And it can reasonably be assumed that Parker knew that Jameson wouldn’t have bought the photos if he knew they were staged and being sold to him by Spider-Man.

So Parker’s misrepresentation by omission will suffice.  It’s also definitely a material misrepresentation (i.e. it would have made a difference in whether a contract was agreed to) because Jameson would not have bought the photos if he knew the truth.

(2) falsity of the representation

This one is pretty easy.  At the very least the photos were falsely presented as genuine news photographs and not a semi-staged photo-op for Spider-Man.

(3) scienter

No question here; Parker definitely knew he wasn’t being honest about the photographs.

(4) reasonable reliance

Another easy one.  It was entirely reasonable for Jameson to believe that Parker was not Spider-Man and that the photos were genuine.  Unlike some superheroes (*cough* Superman *cough*), Spider-Man does a believable job of keeping his identity secret, and there was nothing incredible about the photos.

(5) damages

This one is also straightforward.  The Bugle paid Parker money for the photos, per the contract, and so there are damages.

So that’s misrepresentation established.  What does it get the Bugle?  The likely result is rescission of the contract and restitution of any money paid to Parker for the photographs.  So the Bugle gets its money back and no longer owes Parker anything under the contract.

II. Breach of Contract

This one is a little harder to write about, since we don’t know what the terms of the contract were.  It’s extremely likely, however, that the contract included a representations and warranties section in which Parker affirmatively represented that the photos were genuine, unmodified, unstaged, etc.  By trying to pass off the (effectively) staged photos, Parker would have breached the contract.

The practical upshot of the breach of contract claim is the remedy.  Breach of contract remedies are a little complicated, but the main damages here will be the loss of value due to lost reputation.  What it definitely doesn’t get the Bugle is punitive damages, as damages in contract cases are almost always compensatory. Even in cases of a fraudulent breach of contract, punitive damages are not available unless the fraud was “malicious, vindictive or morally reprehensible [demonstrating the] intent of wanton and reckless behavior.” Reinah Development Corp. v. Kaaterskill Hotel Corp., 59 N.Y.2d 482, 487 (1983).  Parker was not trying to scam the Bugle, so we don’t think his conduct rises to that level.

Because the damage due to lost reputation is so hard to measure, it’s possible that Parker’s contract with the Bugle included a liquidated damages clause.  A liquidated damages clause lets the parties agree to a particular amount of damages in advance.  Parker could thus be on the hook for whatever that amount is times the number of photos the Bugle printed (or, less likely, the number it purchased).

III. Fraud

“Generally, in a claim for fraudulent misrepresentation, a plaintiff must allege a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 178 (2011).  As you can see, that’s remarkably similar to the elements of fraud in the inducement.  The difference in this case is in the remedy.  Whereas the remedy for fraud in the inducement is to undo the contract, the remedy for tortious fraud covers all of the damages stemming from the Bugle‘s reliance on Parker’s misrepresentations and omissions.

But wait a minute, that sounds a lot like the breach of contract damages.  And that’s right: the damages for fraud would be essentially identical to the damages for breaching the representations clause of the contract.  But you don’t get to recover twice for the same injury, so even if the Bugle proved both claims it wouldn’t get twice as much money.  So why bother suing for both?  First, because it might not be able to prove both claims and second, because the contract might not include a representations section (though this is unlikely)

IV. Conclusion

All told, Parker is looking at a pretty serious lawsuit.  As well he should, since passing off staged or manipulated photographs is a serious journalistic no-no, even if it’s done for the best of reasons.

126 Comments

Posted in contracts, mailbag, Spider-Man, torts

Awake and Doctor-Patient Confidentiality

Posted on April 13, 2012 by | 7 comments

Today’s post was inspired by a question from Andrew, who wrote about the television show Awake: “In the most recent episode, [the main character, a police officer] is involved in a hostage situation, and a psychiatrist is in the room, and talks about the hostage taker’s mental health in detail. Given the circumstances, was that legal?”

This is a pretty complicated question.  First, we have to determine which law applies, and there are several to choose from.  Often when people talk about doctor-patient confidentiality they are actually referring to the physician-patient privilege, which is a rule of evidence in some jurisdictions, including California.  Cal. Evid. Code § 994.  Since this incident didn’t involve the psychiatrist testifying in court, it doesn’t apply.

Apart from the evidentiary privilege, there is also a duty of confidentiality, which is both an ethical and a legal duty.  At the state level, California has the Confidentiality of Medical Information Act, and at the federal level there is the Health Insurance Portability and Accountability Act, better known as HIPAA.  Both of these apply in this case, but there are exceptions to both.

California was one of the first states to recognize that therapists have an affirmative duty to warn others when a patient may have violent intentions.  Tarasoff v. Regents of the Univ. of Cal., 17 Cal.3d 425 (1976).  The Tarasoff case is fairly famous, and is frequently discussed in law school torts casebooks.  Notably, however, the Tarasoff case was decided before the CMIA was passed, and the CMIA does not contain an exception for protecting others from a violent patient.  This left therapists in a tricky position, relying on the exception in the evidentiary privilege to find an implicit exception in the duty of confidentiality.

This recently changed with the passage of AB 1178 in 2007, which amended the CMIA to allow disclosure of medical information

consistent with applicable law and standards of ethical conduct, by a psychotherapist … if the psychotherapist, in good faith, believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.

Cal. Civ. Code § 56.10(c)(19).  As it happens, this exception is taken almost verbatim from a similar exception in HIPAA.  From 45 C.F.R. § 164.512(j):

A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose protected health information, if the covered entity, in good faith, believes the use or disclosure:
(i)(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and
(B) Is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat;

I didn’t do a detailed review of the case law, but I suspect disclosing a patient’s mental health information to a police officer handling a hostage situation probably counts.

So, to sum up, the exceptions to the state and federal duties of confidentiality allow the psychiatrist to disclose the information, and the Tarasoff case imposes a duty to do so.  It looks the psychiatrist was in the clear.

7 Comments

Posted in mailbag, television, torts

Superheroes and the Duty to Rescue

Posted on April 2, 2012 by | 35 comments

We’ve talked before about the duty to rescue, but there are a couple of facets of the issue that we haven’t addressed.  Plus, this issue came up (indirectly) in the most recent episode of Grimm, and we’ll talk about that, too.  First, a brief summary of our prior post.

I. The Story So Far

In general there is no duty to rescue or aid others, so superheroes aren’t on the hook (except perhaps morally) if they decide not to rescue someone, even if they could do so very easily.  However, once a rescue is attempted, a superhero must carry out the rescue with ordinary care.  Similarly, abandoning the rescue partway through may leave the superhero liable.  In short, they don’t have to rescue anybody, but if they try they must do so with reasonable care and they have to follow through.

There is, however, an exception for people in “special relationships.”  For example, parents have an affirmative duty to rescue their children.  However, it is very, very rare that the police or other government workers are considered to have such a special relationship with the victim of a crime or other endangered person, so even superheroes who work with or for the government will rarely be treated differently than if they were working as a private citizen.

Finally, at least five states (Massachusetts, Minnesota, Rhode Island, Wisconsin, and Vermont) have passed laws overruling the common law rule in some circumstances.  For example, 12 V.S.A. § 519(a) provides “A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.” (emphasis added).  Not only is this a fairly narrow exception to the common law rule, but the maximum penalty for violating it is a whopping $100 fine.  So while Vermont has pushed back against the common law rule, it hasn’t put a lot of weight behind it.  The other state laws have a similarly narrow scope and enforcement mechanism.

Note, however, that “without danger or peril to himself” part.  A lot of superheroes might get caught by that in situations where ordinary people would have an excuse.  There isn’t much that poses danger or peril to Superman, for example, so unless he owes an important duty to someone else or the imperiled person is already being assisted, Superman might find himself quite busy in Vermont.  This is especially true given that Vermont’s law, unlike the others, doesn’t require the rescuer to be at the scene, merely to “know that another is exposed to grave physical harm.”  Given Superman’s superhearing and other heightened senses, he is probably aware of most such situations in Vermont most of the time.  In fact, Superman should probably just stay out of Vermont entirely.

So those are the basics.  But what about people that are injured during a fight between a superhero and a supervillain?  Does the superhero owe them a duty of rescue or aid?  The answer is…maybe.

II. Injured Bystanders and the Duty to Rescue

The long-held common law rule was that there was a duty to rescue if one was legally responsible for the injury.  “If the actor by his tortious conduct has caused such bodily harm to another as to make him helpless, the actor is under a duty to use reasonable care to prevent any further harm which the actor then realizes or should realize as threatening the other.”  Restatement (First) of Torts § 322 (emphasis added).  Normally, however, superheroes are acting under a legal privilege that allows them to avoid responsibility for a lot of bystander injuries.

For example, suppose Batman throws a gas grenade in order to stop some criminals who are about to attack a civilian, but the wind shifts and the gas causes an injury to a bystander.  Batman would not be liable for that injury unless he realized or should have realized that the gas grenades created an unreasonable risk of causing such harm.  Restatement (Second) of Torts § 75.  No legal responsibility, no duty to rescue.

But the common law has developed, and now many jurisdictions observe a duty to rescue even when the injury was caused non-tortiously.  “If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.”  Restatement (Second) of Torts § 322 (emphasis added).

So going back to our example: under this new standard, Batman would have a duty of reasonable care to prevent further harm to the helpless bystander even though he was legally privileged to cause the harm in the first place.  Of course, “reasonable care” might mean “very little care” if there are more pressing matters at hand, such as a fleeing supervillain to catch or another group of henchmen about to attack other bystanders.  But if there is no other danger, then Batman may be obligated to at least call 911 or take the injured bystander to the hospital.

This rule means that superheroes would have to be very careful to avoid harm to bystanders, lest they be on the hook for preventing further harm, whether from themselves or from others.

III. Grimm and the Duty to Rescue

On the most recent episode of Grimm  (“Island of Dreams”), Nick’s co-worker Sergeant Wu is poisoned by a magical cookie meant for someone else.  Rather than take Wu to the hospital, Nick leaves him in the care of a Fuchsbau* named Rosalee who remembers seeing her father treat a similar case of poisoning several years ago.  As it happens, she (mostly) successfully treats Wu, who seems mostly unharmed.

* As an aside: the mostly nonsensical, horribly pronounced pseudo-German on that show is really irritating.  Hire a consultant, NBC, seriously.

Here, Rosalee (and to a lesser extent Monroe, who assists her) are in a bit of a bind.  What is reasonable in this situation?  Taking Wu to a regular hospital?  Rosalee assures Nick that the doctors won’t know how to treat the poisoning.  But the alternative doesn’t seem much better.  Rosalee’s knowledge is second-hand at best, and she’s not a trained healthcare worker, even among the creatures of Grimm.  And, of course, if things had gone badly, none of them would have been able to explain what had happened.

Initially, Nick himself doesn’t seem to be in any danger of liability, since having Rosalee treat Wu wasn’t Nick’s idea, and in fact he wanted to take Wu to a hospital at first.  But after Wu recovers somewhat, he helps Rosalee and Monroe take Wu to his house so that he can wake up in a familiar environment.  At that point, Nick became party to the rescue and could be liable if a reasonable person would have taken Wu to the hospital at that point.  And that means a reasonable person who knew only what most people know about the world (i.e., nothing about magical cookies or Grimms).

IV. Conclusion

Superheroes need to know the ins and outs of the duty to rescue and its many exceptions and caveats.  In some states superheroes may even have a limited affirmative duty to rescue others, and in Vermont at least that could be a real problem.  Those $100 fines can add up, and failure to pay them could result in a contempt charge.  In Superman’s case the bad PR would probably be worse than the fine or even the contempt charge, but it’s still something to watch out for.

35 Comments

Posted in television, torts

Superman: Grounded (# 707): Theft, Necessity, Insurance, and Mitigation of Damages

Posted on March 26, 2012 by | 39 comments

The second hardcover volume of Superman: Grounded came out in December, and the very first issue, Superman # 707, contains a doozy of a legal conundrum.

Here’s the setup. Superman is in Des Moines, Iowa, saving people and basically doing his thing. He’s on his cell phone (Yes, he’s using a cell phone. No, it doesn’t make any sense for him to be doing so.) with Lois, when the chemical plant she’s at has a fire. He hears it and flies over. He puts out the fire with water from a nearby creek, but notices that the fire has caused structural damage to the plant, which is likely to collapse and possibly even reignite. So, seeing a passing truck full of steel bars, he ganks a bunch of them and uses them to shore up the building. The driver of the truck says, and I quote, “Hey, Superjerk, you can’t just take those!” Which is probably true. Superman’s response is “I assure you, sir, it’s for a good cause.” Which is as may be, but doesn’t change the fact that Superman has likely stolen at least several thousand dollars worth of goods. Continue reading →

39 Comments

Posted in criminal law, insurance, superheroes, Superman, torts