In recent years, we have seen release after release of movies starring superheroes who are fighting to save the world from imminent destruction. With the current release of “Avengers: Endgame,” the latest in a long line of box-office superhero hits, I figured it was only fitting to look at whether the superheroes could be held liable for the destruction they cause.
In the process of trying to save the world, superheroes often cause massive destruction to private property. Entire buildings and city blocks are destroyed. Then, when the fighting is done, the superheroes simply leave. The property owners and public are then left to clean up the mess. There is a compassionate argument to be made that perhaps we should not hold them liable, out of gratitude for saving the world. But, this blog focuses on the legal arguments of whether we could hold them liable, if we wanted to.
Perhaps the most common argument for liability is that of negligence. In other words, if someone breaches a duty of care that is owed to another and causes damage as a result of such breach of duty, then the offender is liable for the damages. It is clear that the superheroes caused the damage to buildings and property, but causation does not always equate to liability.
Everyone, superhero or not, has a general duty of care to act reasonably to not place others at a foreseeable risk of harm or property damage. Perhaps the key when it comes to the duty of care is “reasonableness.” People aren’t expected to be perfect, but they need to at least act with the amount of care that a reasonably prudent person would in a given situation.
While the superheroes do not always do things in the best way and they do not always hit what they are aiming at, it could be argued that they have still acted reasonably given the situations they are presented with. When presented with the same situation as the superheroes (with aliens invading the city, etc.), a reasonable person would likely act in the same way.
Another theory of liability is trespass. Essentially, when someone enters your property without permission and damages that property in the process, the trespasser is liable for the damage. Under a theory of trespass, the liability is easier to establish because it is not necessary to prove that the trespasser was negligent, just that they entered without permission and caused damage.
Under a theory of trespass, it would seem quite promising to be able to hold the superheroes liable for the damage they cause. The superheroes, in fighting to save the world, are clearly entering private property without the permission of the owners. Without regard for whether they can be on the property or not, the superheroes crash through buildings, grab onto the side of skyscrapers to break their fall (tearing it up in the process), etc.
However, that is not the end of the analysis. After establishing potential liability under trespass, we then have to look at the potential defenses available to the superheroes.
The common law defense of “public necessity” is an absolute defense to liability under trespass. As stated in the Restatement (Second) of Torts § 196, “one is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster.”
It requires no stretch of the imagination to say that the defense of public necessity would apply to most of the situations where the superheroes cause the destruction. When aliens invade from another planet and threaten to destroy the entire earth, it would make sense that the superheroes can go wherever they need to in order to save the world. However, if there is no imminent public disaster and the superheroes simply get mad at each other and fight their way through the city, then the defense of public necessity would not apply and the presently-not-so-heroic superheroes would likely be liable for the damage caused by such a scuffle.
Whether you are a superhero or not, if you have a legal dispute contact the experienced trial lawyers at Goosmann Law Firm, PLC, in our Omaha, Sioux City, or Sioux Falls offices.
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