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Law is a Ass by Bob Ingersoll
Join us each Tuesday as Bob Ingersoll analyzes how the law
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THE LAW IS A ASS for 08/14/2001

"The Law is a Ass" Installment # 108
Originally written as installment # 97 and published in Comics Buyer's Guide issue # 685, January 9, 1987 issue

It's simple enough. Some readers wrote in and asked me some questions. I answered them. And presto! A column.

Hey, if you were looking for profundity, you're outta luck. It's Monday and I've misplaced my profundity. And you can't expect it to be lost and profound.

(See, I've lost my sense of humor, too. Maybe you'd better read the column; one written a few years back, when I still had a sense of humor.)


"The Law is a Ass"
Installment # 108
Bob Ingersoll

Well, yes they can, but...

That's the answer to the questions that I have been asked for this week's column: "Well, yes they can, but..." (Didn't you know there'd be a "but"? Lawyers always have a "but." How else do you think we stay in business?) However, if my first paragraph is the answer, the question is, what was the question?

Question # 1: Can they really cut off Angel's wings against his wishes, like they did in X Factor # 14? Well, yes they can, but...

It has to do with competency. You know what competency is, it's the ability to be able to do something. In this case, we're talking about mental competency, the ability to make rational decisions and to care for one's self. All of us are presumed to be competent. Yes, all of us. Even people like me, who bought Golden Pharaoh, Cyclotron, and Samurai, just to have a complete set of Kenner Super Powers figures. Sometimes, however, something happens.

The mind is a fragile thing. It snaps. And what was once a thinking, rational, competent human being becomes someone who would willingly sit through the colorized version of Night of the Living Dead.

When a person's mental condition becomes so impaired that he or she can no longer make rational decisions and poses a threat to his or her own health and well-being or the health and well-being of others, that person is no longer mentally competent. Rather than let such a person roam free to do harm to him/herself or others, courts are empowered to declare the person incompetent and appoint other persons as guardians, who will make the decisions for the incompetent. Even decisions that the incompetent doesn't like. In fact, usually decisions that the incompetent doesn't like.

In the case of the Angel, he was seriously depressed over his injuries, his pending trial for fraud, and the fact that he wants to make a play for Jean Grey but doesn't feel he can. (The fact that he had missed out on the Secret Wars wasn't enough to bring him out of his depressed state, which shows you exactly how off his mental condition was.)

Depression is a mental illness. A severely depressed person frequently feels so bad that he/she does not care what happens to him/herself and does not always make decisions in his/her best interests. In that case, the mental illness has rendered the person's reasoning ability suspect. Such a person can be declared incompetent and have a guardian appointed to govern his/her affairs.

Angel persistently refused to allow his wings to be amputated, despite the fact that, if they weren't surgically removed, the infection in them would spread to the rest of his body and kill him. The hospital believed that Angel was no longer capable of making rational decisions that were in his own best interests. As Angel had no family who could override his wishes and give the hospital the authority to operate, the hospital itself petitioned the court to declare Angel incompetent and appoint a guardian who could give them authority to operate. The hospital succeeded, Angel was declared incompetent, and his wings were amputated.

As I said, yes, they really could cut off Angel's wings against his wishes. However, as I also said, "but..."

It happened too easily. Courts don't just declare someone incompetent, just because someone else asks them to. If they did, then all those mystery stories where greedy heirs bribe crooked doctors to lie so that eccentric, but rich, Uncle Harold, can be declared incompetent and said heirs can control the estate would never have been written. (Which is almost sufficient reason to wish it were that easy.) Courts can only declare someone incompetent, after the person whose competency is in question is afforded due process rights. In the case of someone like Angel, who was conscious, coherent and communicative, due process would have demanded that he be notified of the hospital's desire to declare him incompetent, so that he could fight the action, if he so desired.

The story in question makes it clear that Angel knew nothing about the competency proceedings, until after he had been declared incompetent. The story took a convenient, dramatic short cut, because neither the writer nor, presumably, the reader wanted to see a boring competency hearing.

While I can't dispute the wisdom of not wanting to show a long and boring competency hearing unfortunately, this decision short cut also cut short the story's realism. There were other alternatives to making incompetency a fait accompli. What were they? Well, they could have had Warren grow so despondent that he slipped into catatonia. Then the hospital couldn't have gotten his permission and could have received permission to amputate from a next of kin, just as hospitals do with unconscious accident victims. Or, they could have mentioned the possibility of the hearing a few issues ago and then said in this issue the hearing was and Warren lost. Or...

Hey, if I I'm going to do the writer's job, I want the writer's page rate. But there were alternatives. Why, perhaps the writer could even have figured out a way to make the competency hearing interesting. This being the holiday season only reminds me of how delightful the competency hearing in Miracle On 34th Street is. (Ah yes, there's nothing better than seeing crusty curmudgeons get their comeuppance.)


Randy Freeman of Riverside, California, whose name is becoming something of a fixture around these parts, sent me a copy of Richie Rich # 222. (Richie Rich? Okay this time, Randy, but we have to establish a ground rule. If you ever send me a Star Comic, the honeymoon's over!)

In a story called "Big Clarence" Richie gets a new body guard, the aforementioned Clarence. Richie and Clarence go for a walk in the woods on the Rich estate. They are secretly followed by a man, who is trespassing so that he can kidnap Richie. Luck is not with this man, however. Clarence lifts up an fallen tree, which blocks the path and throws it away. It lands on the man, who was hiding in the bushes. Clarence bends another tree down to use as a makeshift bridge, and when it snaps back it hits the man, who was still hiding in the bushes.

Question # 2: Randy wanted to know if the man could sue Richie or Clarence for injuring him.

Well, yes he can, but...

The "but" being sure he can sue, if he wants, but he probably won't win.

A successful negligence action requires that the negligent party breach a duty of care owed to another. Breaching a duty of care means failing to act so as to avoid some reasonably foreseeable harm to another. A common defense to negligence actions is that what ever harm befell the injured party was not reasonably foreseeable, thus the injuring party owed no duty of care to avoid it. (The courts, in their infinite kindness, don't require persons to avoid problems they couldn't reasonably foresee as possible.)

In our Richie Rich case, neither Clarence nor Richie could reasonably foresee any harm to the man. Remember, he was trespassing without their knowledge and hiding from them. How, then, could they be expected to avoid harming a man they did not know was present and had no reason to suspect was present? Harm to this unknown quantity was not foreseeable.

On the other hand, we've had some pretty strange cases recently in the real world. Like the second story man who was trying to break into a school through a skylight and fell, because the defective skylight broke under his weight. He sued and argued that the school should have foreseen the possibility of second story men trying to break in through the skylight, so the school owed a duty to second story men to keep the skylight free from potential harmful defects.

Yes, this is a real case. Unfortunately, I never heard who won, the school or the second story man. Do any of my readers know the answer? I'd really like to know.

Incidentally, for those who are interested, the man didn't kidnap Richie. Clarence fell into a quicksand bog, but when the man tried to grab Richie, he collapsed from all the trees that hit him, and Clarence used the man to escape the bog. Richie gave the man a $1,000 reward, and he decided that going straight was more profitable.

Which leaves only one unanswered question. Exactly why does the Rich estate have open and unmarked quicksand bogs on them? Can't they afford to fill them in? Or fence them off? Or, at least, put up a sign or something warning people of their impending doom?

Okay, so it was three questions. Considering the Richs have three billion dollars for every one dollar I have, it seems only fair that they get three questions for my measly one.

Bob Ingersoll

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