Category Archives: torts

Today we have a question about a supervillain-worthy plot from the movie Swordfish.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

NB: If you haven’t seen the movie, the question and answer technically include spoilers, but they’re from the opening scene.

Alan writes “In the film Swordfish, the villain Gabriel Shear has an elaborate plan involving hacking a bank’s computer while holding hostages.  He wires these hostages with explosives rigged to a sensor which will detonate them if they leave the bank, and he explains this to the authorities.  However, SWAT members still grab one of the hostages and drag her away from the bank, against her will, and she explodes, presumably dying in the process and killing several SWAT team members. … Is Gabriel Shear liable for murdering the woman, or the SWAT team members? (Would this be ‘felony murder’?)  Would the woman’s relatives have a civil claim against the police?  Does the fact that she was unwilling to go with the officers affect these considerations?”

There are basically two issues here: Shear’s liability and police liability.  Since this scene is set in L.A., we’ll use California law.

I. Shear’s Liability

In California, murder is described in Cal. Penal Code § 187-89.  Immediately we see two potentially applicable kinds of first degree murder: murder by explosives and felony murder.  The felony murder rule may apply because the murder was committed in the perpetration of, amongst other things, the kidnapping of the hostages.  The question is: is Shear liable for the murder given that he didn’t ‘pull the trigger,’ so to speak?  Intuitively the answer seems like it should be yes, but let’s work through the analysis.

A. First Degree Murder by Explosives

This is the most straightforward charge: Shear murdered the victim with explosives.  But there are at least two potential sticking points: cause and intent.

i. Causation

An essential element of murder is that the defendant must cause the victim’s death, and Shear’s actions were at least one step removed from the victim’s death.  It was the SWAT team member pulling the victim out of range that was the immediate cause of death.  Does that get Shear off the hook?

As it turns out, probably not.  A defendant can also be responsible for a death if he “sets in motion a chain of events that produces as a direct, natural and probable consequence of the [act] [or] omission the death in question and without which the death would not occur.”  People v. Fiu, 165 Cal.App.4th 360, 369 (Cal. Ct. App. 2008) (emphasis in original).  The prosecution would argue that a direct, natural, and probable consequence of fitting hostages with explosive collars designed to kill people is that someone will, in fact, get killed.

Now, the defense might argue that the SWAT team member’s intervention broke the chain of causation, but it takes a lot to break the chain: “To relieve a defendant of criminal liability, an intervening cause must be an unforeseeable and extraordinary occurrence.  The defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his act.”  Fiu, 165 Cal.App.4th at 371.

Here, it’s pretty clear that Shear in fact contemplated and foresaw the possibility of a hostage being harmed by police intervention in precisely this way.  That’s why he warned the police about the collars.  It’s no defense that the police tried to intervene anyway.  Indeed, as Justice Cardozo said in the context of torts, “Danger invites rescue….The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.”  Wagner v. Int’l Ry., 232 N.Y. 176, 180 (1926) (by the way, the Wagner case justifies a tort claim against Shear by the deceased police officer’s heirs; superheroes could make the same claim against supervillains if they are injured while trying to rescue the supervillains’ victims).

ii. Intent

Another potential issue with a straightforward murder charge is that arguably Shear did not intend to kill anyone.  Indeed, he specifically instructed the police regarding the explosives, which suggests he wanted a clean getaway.  In California the intent required for murder (‘malice aforethought’) may be express or implied.  Cal. Penal Code § 188.  According to the California Supreme Court, “Malice is implied when: The killing resulted from an intentional act, 2. The natural consequences of the act are dangerous to human life, and 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.”  People v. Dellinger, 49 Cal.3d 1212, 1222 (1989) (en banc).  Here, Shear intentionally caused the killing (per the above), the natural consequences of putting explosive collars on people are pretty obviously dangerous to human life, and Shear clearly was aware of the danger to human life and deliberately acted with conscious disregard of it.  So the intent requirement appears to be met.

But suppose a court disagreed and found that causation, intent, or both were absent.  Could another approach fit, perhaps the felony murder rule?

B. Felony Murder

The California felony murder rule is limited to killings committed in the perpetration of, or attempt to perpetrate various specific violent crimes listed in the statute.  Let’s assume that Shear and his conspirators committed at least one of those other crimes (most likely kidnapping).  Would the felony murder rule help us out here if regular murder were unavailable?  The answer is “probably not.”

The purpose of the felony murder rule is two-fold.  First, to upgrade what would be manslaughter or second degree murder to first degree murder.  Second, to impose liability on every participant in a felony.  If Shear isn’t guilty of first degree murder because he didn’t cause the hostage’s death or intend to harm the hostage, then he’s likely not guilty of second degree murder or manslaughter either.  So felony murder won’t work for the first purpose.  And since the SWAT team member that was the most direct cause of the hostage’s death wasn’t a participant in the underlying felony, felony murder won’t work for the second purpose.

This seems like an unsatisfying result, but as it turns out the California courts have plugged this hole.  The fix actually takes us back around to regular murder by way of the “provocative act” doctrine.

C. Provocative Act

Under the provocative act doctrine, “When the defendant … with a conscious disregard for life, intentionally commits an act that is likely to cause death, and … a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life.  Thus, … the police officer’s killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant.”  People v. Gilbert, 63 Cal.2d 690, 704-05 (1965).

In fact, the courts have specifically found provocative act liability in cases where hostages have been taken, used as shields, and then accidentally killed by a would-be rescuer.  Pizano v. Superior Court, 21 Cal.3d 128 (1978) (en banc).  In Pizano the court noted “Taking [the victim] as a hostage, pointing a pistol at him, stating he would be shot if the police intervened, and then using him as a shield provided a more than sufficient basis for an inference of malice. Indeed, it has been argued that malice is express in such cases on the ground that using the victim as a shield is a direct and deliberate creation of immediate lethal danger to the deceased and to him alone.”  Pizano, 21 Cal.3d at 136.

So we think we can safely conclude that Shear is guilty of murder, even in the unlikely event that the straightforward murder charge didn’t apply and he escaped the felony murder rule.  But Shear’s criminal liability does not necessarily excuse the government of any tort liability for the victim’s death.

II. Police Liability

In California, police officers and their employers generally enjoy absolute immunity from tort liability for their discretionary acts, even if they abuse that discretion.  Cal. Gov. Code §§ 820.2, 815.2.  However, if the police officer exercises discretion and chooses to act, then he or she (or his or her employer) may be liable for his or her negligent performance.  McCorkle v. City of Los Angeles, 70 Cal.2d 252, 260-61 (1969).  As we’ve discussed on the blog before, however, police officers have no general duty to rescue anyone, and this is true in California as well.  Camp v. State, 184 Cal.App.4th 967, 975 (Cal. Ct. App. 2010) (noting “A police officer … is as much entitled to the benefit of this general rule as anyone else.”).  “Liability may, however, be imposed … if an officer undertakes affirmative acts that increase the risk of harm to the plaintiff.”  Id.  A special relationship, and therefore a duty to rescue, has been found in cases where a police officer “placed a citizen in harm’s way.”  Id at 977.

I’m not sure if the police officer knew about the explosive collar.  It’s been a while since I saw the (admittedly not very good) movie, but from a review of the script I don’t think the officer knew about it.  Regardless, trying to drag a hostage away from a well-armed and clearly dangerous group of bank robbers would pretty clearly increase the risk of harm to the hostage even without the explosive collar.  It seems at least as dangerous as what the officer did in the McCorkle case, which was to direct the plaintiff to walk into a dangerous intersection.  But is it enough?  Alas, probably not.

It is not enough that a police officer’s actions increased the risk of a pre-existing harm (e.g. that the collar would explode); the officer’s actions must change the risk or introduce a new risk.  Adams v. City of Fremont, 68 Cal.App.4th 243, 284 (Cal. Ct. App. 1998).  Furthermore, “law enforcement officers are shielded from ordinary negligence claims based on their response to public safety emergencies when those efforts prove to be ineffective in preventing self-inflicted harm or harm caused by third parties.”  Munoz v. City of Union City, 120 Cal.App.4th 1077, 1097 (Cal. Ct. App. 2004).

Here, the officer’s actions increased the pre-existing risk that the collar would explode, but he did not create a new risk by, for example, opening fire on the bank.  And of course the fairly blanket public safety emergency exemption described in Munoz applies anyway, since the harm was caused by a third party.  It’s generally pretty difficult to sue a government for incompetent police work, and this case is no exception.

III. Conclusion

One way or another, Shear is guilty of murder, likely first degree murder, as well as a host of other crimes.  The police officer and the government, however, are likely not liable for the hostage’s death.  Theoretically Shear is liable for the deaths of both the hostage and any police officers, but (spoiler alert!) since he manages to get away with billions in the end, that’s cold comfort for the victims’ families.  That’s what life insurance is for, we guess.

That’s all this week!  Keep your questions and post suggestions coming!

This week we have a question about No Ordinary Family and reckless endangerment.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

James asks “The ABC show No Ordinary Family aired a recent episode where the character Jim, who is invulnerable, deflects a bullet which ricochets off of a number of metal objects and winds up striking a teen bystander. … Jim feels responsible for what happens to the young man, especially in that he chose to confront the man whom he knew was armed.  How much responsibility would he truly bear? Does he have a duty to take this fight into a secluded area (which he did – the bystander was inside a nearby building)? Could he be charged with reckless endangerment, even though he didn’t know the boy was there, since he does seem to be showing off in front of the criminal?”

Although No Ordinary Family isn’t based on a comic book, it does feature a lot of superhero comic book tropes and—most importantly for us—it’s set in a world that shares our legal system.  This particular question is also interesting because it’s the kind of collateral damage that shows up in many comics.

So is Jim guilty of anything here?  Or perhaps liable in tort for the teenager’s injuries?  The first question we have to ask is “what law applies?”  When talking about Gotham or Metropolis there’s not always a definite answer for that, but in this case we know the show is set in a fictional town in California, so we’ll apply California law.  First, the criminal law.

I. Was It a Crime?

As it turns out, like many states California does not have a general offense of reckless endangerment.  California does have reckless endangerment-like laws regarding the discharge of firearms, but those don’t apply here since Jim wasn’t the one pulling the trigger.  But maybe a different offense fits.  Let’s consider the most generic one: simple battery, which is defined in Cal. Penal Code § 242 as “any willful and unlawful use of force or violence upon the person of another.”

As you can probably guess, the analysis here depends on what exactly “willful” means.  In California, the mental state or intent required for battery is the same as for assault because an assault is simply an attempted battery.  People v. Hayes, 142 Cal.App.4th 175, 180 (Cal. Ct. App. 2006).  “Assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.”  People v. Williams, 26 Cal.4th 779, 790 (2001).  Since Jim did not know that the bystander was there and since ricochets are highly unpredictable, Jim couldn’t have known that his actions would “probably and directly result in the application of physical force against another.”  So we don’t think Jim committed a crime in this case.

II. Was It a Tort?

If Jim isn’t criminally liable, what about a tort suit by the victim?  Here we can turn to the law of negligence.  In California the elements of negligence are a legal duty of due care and a breach of that duty that is the proximate (i.e. legally responsible) cause of the resulting injury.  This is also known as “duty, breach, causation, and damages.”  Conroy v. Regents, 45 Cal.4th 1244, 1250 (2009).  Here the damages are clear (the dude got shot), so let’s consider the first three elements.

A. Duty

As a general rule in California, everyone has a duty to use ordinary care to avoid injuring others.  Cal. Civ. Code § 1714(a).  However, this only extends to injuries that were reasonably foreseeable to the defendant at the time.  Dillon v. Legg, 68 Cal.2d 728, 739 (1968).  The analysis, however, is generalized to “whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” Lawson v. Safeway Inc., 191 Cal.App.4th 400, 409 (Cal. Ct. App. 2010).  “Sufficiently likely” means “likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.”  Friedman v. Merck & Co., 107 Cal.App.4th 454, 466 (Cal. Ct. App. 2003).

So would a reasonably thoughtful person take into account the possibility of ricocheting bullets striking an unknown person?  Certainly many superheroes are concerned with the possibility of their actions harming bystanders (including bystanders that may not be readily apparent), and many go out of their way to avoid or prevent such harm.  On the other hand, ricochets are unpredictable, and we’re not sure the reasonably thoughtful person would spend much time contemplating physics while getting shot at.  We could see a court going either way with this, but let’s assume the court says there’s a duty here so we can continue the analysis.

B. Breach

In general, a duty has been breached when the defendant has displayed less than ordinary, reasonable care or prudence.  See Mosley v. Arden Farms Co., 26 Cal.2d 213 (1945).  So how do we judge that?  California, like many states, follows the Learned Hand formula of negligence, named for the famous Judge Learned Hand.  Crane v. Smith, 23 Cal.2d 288, 298-99 (1943).  Basically, you multiply the likelihood of the harm by the magnitude of the harm, then compare the result to the cost of preventing the harm.  If the cost to prevent the harm is less than the average cost of the harm, then not preventing it is unreasonable.  In other words, spending a $1 to prevent $2 worth of harm is reasonable, but spending $2 to prevent $1 worth of harm is not.  It’s a kind of reductive view of rationality, but the law is like that sometimes.

In this case it’s hard to put a number to either the harm or the cost.  Instead, we can simply consider the circumstances and ask what a normal person would do if someone pointed a gun at their face.  Most normal people would do exactly what Jim did: throw a hand up in a—for most people futile—effort at self-defense.   And the ricochet might have occurred even if it had been an ordinary person; bullets can ricochet off of rings, watches, and even bones.

In fact, it was actually self-defense in Jim’s case, since a high-powered bullet fired at close range is capable of hurting him, so he tends to deflect bullets with his hands rather than his face.  Since an ordinary person would probably have done exactly what Jim did under the circumstances, we don’t think there was a breach of duty here.  There’s no negligence without a breach, and so Jim wouldn’t be liable and the analysis ends there.  Thus, we don’t actually have to consider causation (although if people are interested we think there’s a sort of flimsy argument to be made there as well).

(NB: The fact that it was a lawful act of self-defense is not itself a defense to negligence.  “No purpose, however benevolent, excuses negligence.”  Woodhead v. Wilkinson, 181 Cal. 599, 602 (1919).  What matters is that an ordinary person would have done the same thing under the circumstances.)

III. Conclusion

We don’t think Jim is criminally or civilly liable for the victim’s injury.  By contrast, the attacker is at a minimum guilty of attempted murder (of Jim) and grossly negligent discharge of a weapon.  He would also be liable in tort.

That’s all for this week!  Keep your questions and post suggestions coming in!

Today we have questions about supervillain gadgets and imposing unwanted powers on people.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

Continue reading →