Earth’s mightiest liabilities

There was an idea to bring together a group of remarkable lawyers to see if they could answer the questions we never could: Whether the heroes of the new Avengers movie could be held liable in a court of law

Illustration by Alexis Ziritt,
Illustration by Alexis Ziritt,
April 2018
By David Thomas
Chicago Lawyer correspondent

The Avengers, on their own and together, have stopped alien invasions, killer A.I. and Nazis (both neo- and original) from conquering or destroying the world.

But those efforts have exacted costs in terms of property damage and human life. Kinetic Analysis Corp., a Maryland-based natural disaster firm, estimated the damage caused by the Chitauri invasion of New York City in the first Avengers movie would have been $160 billion with a death toll in the thousands.

Over the course of 19 feature films (with “Avengers: Infinity War” hitting theaters today) and 11 television shows (with “Cloak & Dagger” premiering on Freeform in June), the Marvel Cinematic Universe has never directly addressed the legal liability for the destruction depicted on screen. There have been fictional laws, like the Sokovia Accords that drove the plot of “Captain America: Civil War,” but the MCU hasn’t yet addressed what would happen if a real-life American citizen put on bike tights and punched a robot.

Is Black Panther a foreign agent? How many product-liability lawsuits would Iron Man face for creating Ultron? Do insurance policies cover acts of Norse gods? And what would happen if Spidey or Daredevil dropped off an unconscious bank robber at a police station and swung off yelling that the person did crimes?

Like a Nick Fury of Midwestern legal trade publications, Chicago Lawyer has brought together a group of remarkable lawyers, an attorneys initiative to ask what kind of civil and criminal liabilities — and immunities — the Avengers and other superheroes might have.

Infinity torts

You were a janitor at Stark Tower hit by rubble when Hulk smashed puny god Loki into the floor above you, or it was your van Diamondback punched Luke Cage into. Whom exactly can you sue?

A plaintiff who suffered personal injury or property damage in a superhero fight would likely sue every corporation, individual and green rage monster involved, said Charles Lee Mudd, Jr., the principal at Mudd Law Offices. Once in court, the defendants could cite any number of reasons why the case should be dismissed for them.

“From a plaintiff’s perspective, from an attorney’s perspective, you need to protect your client, and you’re also making sure you sue everyone who might have liability,” Mudd said. “As the plaintiff’s attorney, I would not want to refrain from suing somebody involved, and then later have the whole case thrown out and be time-barred.”

A superhero operating as an agent of the government would have the same kind of immunities a police officer would have. Under the Federal Tort Claims Act, a government-sanctioned superhero could only be sued for causing property damage or personal injury through a negligent act, said Lawrence Friedman, a partner at Barnes Richardson & Colburn.

The FTCA excludes military actions conducted during wars, but it’s unclear whether certain battles seen in superhero movies would count as a war, Friedman said. It’s also unclear whether those same instances would count as terrorism, he added. Under the Terrorism Risk Insurance Act, the U.S. government will reimburse insurance companies for damages they incur from certain acts of terrorism.

Notably, the superhero Black Panther would likely be immune from both civil and criminal liability because, as the king of Wakanda, he is a foreign sovereign, Friedman added.

Government-registered superheroes would also be liable for constitutional claims, although the universe of charges that can be alleged differ between federal agents (Captain America) and state and local agents (Captain Barrington Township), said Benjamin S. Wolf, the legal director of the Illinois chapter of the American Civil Liberties Union.

Section 1983 of the United States Code allows plaintiffs to sue state and local governments for any deprivation of their civil rights, but federal agents can also be held for constitutional violations as defined by the U.S. Supreme Court in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). That decision allows plaintiffs to sue federal agents for Fourth and Eighth Amendment violations, as well as police misconduct allegations, but very little else, Wolf said.

Without government backing, superheroes would face enormous legal liability, said Steven M. Levin, a partner at Levin & Perconti.

“They’re acting as a sort of extralegal force without any sanction of any municipal, state or national governmental body,” Levin said. “The danger is in the pursuit of their heroics, they injure other people or cause extensive property damage, they would be liable or responsible for any negligent conduct causing that sort of … mayhem.”

Threat, menace or samaritan?

It’s happened to us all: You’re swinging around town and chance upon a bunch of burly men in Avengers masks using alien technology to slice open a bank ATM. With great power comes great responsibility, but don’t count on Good Samaritan laws to save you in the courtroom.

It would take a robust Good Samaritan law in a country brimming with vigilantes to exempt a lot of the actions a superhero might undertake from liability, Mudd said.

“For the same public policy reasons, we don’t want to discourage people from trying to help others, to worry about whether they’re going to get sued or not,” he said.

At the same time, Mudd said a liability exemption could be an incentive the government could use to compel superheroes to cooperate. He acknowledged the number of superhero stories in which the hero “goes rogue,” and said a stronger Good Samaritan law would be problematic in that regard.

Right now, a superhero operating on his or her own would not be able to rely on a state’s Good Samaritan law if things went wrong, Levin said. That’s because those laws were designed to protect ordinary people responding to medical emergencies, not actively seeking crimes to stop. Illinois’ own law — 745 ILCS 49 — protects people who are acting in good faith and not committing willful or wanton misconduct.

That would not cover a person making a citizen’s arrest of “a bunch of rowdy teenagers” who are then injured, Levin said.

Nor would it exempt a superhero from liability if he or she accidentally aided a criminal and not the victim, Wolf said.

Even if a superhero plays a role in capturing an alleged criminal — like Spider-Man webbing up bank robbers fleeing from the police or DC Comics’ Batman strapping an alleged crime boss to a spotlight — it’s up to prosecutors to prove the criminal’s guilt in court with evidence, Wolf and Levin said separately.

Wolf noted that a lot of comic book scenarios involve serious invasions of privacy. But if a superhero, acting on his or her own accord, does something inappropriate to seize evidence and turns it over to the police, the prosecution could still use that evidence in court, Wolf said. That issue becomes blurrier if the hero is acting as a government agent, he added.

But Wolf said superhero media creates ideal, perfect images of the men and women who do decide to put on a mask to fight crime. In reality, masked vigilantes include groups like the Ku Klux Klan that oppressed communities of color through violence.

“If you look at the real history of private violence in the name of law enforcement in the United States, you can see an awful lot of cruelty and harm,” Wolf said. “We don’t think of Spider-Man that way, obviously. But in the real world, when real human beings with all of our faults start thinking we can beat up and capture other people, we’re much more likely to do more harm than good.”

Quicksilver hits

Chicago’s Mightiest Lawyers also reported …

  • The same liabilities and immunities would apply to superheroes whether they’re fighting on American soil, in space or in Ant-Man’s subatomic Quantum Realm, Mudd said.
  • Interdimensional tort law gets more complicated. If Doctor Strange acts in the Dark Dimension and it causes harm here in the U.S., the injured party could sue him here, Mudd said. If Strange harms a Dark Dimension resident in the Dark Dimension, that entity could choose to pursue an action in either Dark Dimension courts or in Greenwich Village resident Strange’s home venue — New York City Civil Court if the damages were under $25,000, the U.S. District Court for the Southern District of New York if the damages were over $75,000 or, in a pure negligence case, the New York State Supreme Court’s Civil Branch in Manhattan. Mudd recommends Dormammu file in federal court.
  • Aliens (both panther-suited foreign nationals and walking trees from beyond the stars) could be sued in U.S. court, like how U.S. courts sometimes host lawsuits targeting foreign governments or terrorists, Levin said. Similarly, those plaintiffs could have a cause of action against human governments or individuals whose negligence allowed the aliens to invade. For instance, S.H.I.E.L.D. could be sued for negligence after Loki stole the Tesseract to open the portal allowing the Chitauri to invade in “Marvel’s The Avengers.”
  • The United Nations bans the trade of culturally or historically significant artifacts without the country of origin’s permission. These restrictions could apply to alien artifacts in superhero media, like the scepter Loki uses or the Tesseract, an alien cube that provides limitless energy, Friedman said.
  • In non-MCU films “The Incredibles” and “Ghostbusters II,” the heroes have been forced into retirement due to the massive number of civil lawsuits filed against them. “I think the urban myth of excessive successful civil rights litigation is a myth. When people prevail on civil rights cases, the facts are always pretty clear,” Wolf said.
  • It’s unclear what Captain America’s current status with the U.S. military is, Friedman said. If he is still active, then his decision to flee with his allies at the end of “Captain America: Civil War” would likely make him a deserter.
  • Tony Stark’s role in creating Ultron, the rogue artificial intelligence that nearly destroyed the Earth in “Avengers: Age of Ultron,” would subject him to enormous liability, Levin said. He compared to someone who keeps a lion in a cage. If a lion gets out and injures someone, he or she is responsible. “That would be the world’s biggest lawsuit. It would transcend what will happen in the opiate litigation,” he said.
  • Unless they were working directly for the military, it would be impossible for superheroes like Iron Man and War Machine to fly out of the United States without breaking U.S. export control laws, Friedman said. U.S. law requires anyone bringing military technology out of the country to get an export license even if they have no intent to sell it. This includes materials like blueprints or manuals stored on private computers, Friedman added.
  • Insurance companies will cover damages and injuries from “acts of God.” But would that cover damages caused by Thor or Loki, Norse gods from Asgard? Mudd said yes, because he doubts that any insurance company has defined what or who God is, or outlined the legal liabilities of any potential deity’s flying space hammer.