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THE LAW IS A ASS for 03/07/2000
"The Law is a Ass" Installment # 34
Originally written as installment # 24and published in Comics Buyer's Guide issue # 550, June 1, 1984 issue
Two quick points about today's column. The first is I didn't realize, back in 1984, how prophetic my closing line would prove to be a decade, or so, later. No fair going to the last line and checking. Just remember, when I wrote it in 1984, I had no idea.
The second point, in the middle of the column, I talk about the old Marvel character, It, the Living Colossus. During the course of the column, I talk about this character's actions and have to use the possessive form of It. When the column first appeared, editors Don and Maggie Thompson told me they read it, "Tsked" an editorial "Tsk," got out their blue pencils and prepared to what they perceived as a grammatical error: my possessive form of It. Then they thought better of it and, instead, wrote this sidebar to the column:
"Editors' note: Perhaps the most frequent correction made by editors (these two editors anyway) involves the use of the apostrophe. There are times when we think three-quarters of the country was out sick when possessives were covered in elementary grammar classes. The most common error with possessives is the use of 'it's' (a shortened form of 'it is') for 'its' (the correct form to show possession, as in 'the sun had lost its warmth').
It therefore behooves us to express publicly our awe of Bob Ingersoll, who (in this installment of his column) correctly uses "It's" as a possessive. The only time we can recall seeing it done."
"The Law is a Ass"
Installment # 34
I subscribe to a service. Once a month, a delivery van, cleverly disguised as a laundry truck, drops off a package, cleverly disguised as overly starched undershorts, but which actually contains at least ten viable column ideas.
The preceding was one of the standard answers that writers give, when they are asked, "Where do you get your ideas from?" It's witty and biting, and I've always wanted to use it. The problem is, no one has ever asked me the question. I guess everyone just assumes that I get my column ideas from reading the latest week's batch of comic books, then writing about what irked me. Usually I do. Sometimes I can't.
I think they're all scared of me. There hasn't been anything in the comics I can sink my columnist's teeth into in almost a month. Even Adrian Chase has been a model of good behavior. No one's using the law in their comic stories anymore. Have I singlehandedly taken law out of comics? What power! Maybe I should write a science in the comics column, too, then no one would use the law or science. Then I could start a column about humor in the comics and spark a revival of funny-animal books. Why, I bet I could even resurrect Mopee. (Hmm, maybe I should go back and groove on that old "Great power, great responsibility, " mantra for a while.)
Meanwhile, what do I do, when this week's comics haven't given me any column fodder, and I owe Don & Maggie a column, because I skipped a week, when last weeks's books didn't have any fodder either? And especially when there isn't really any service to subscribe to? Well, first I peruse my old comics hoping I can find something topical, which isn't too dated. Usually I don't find anything, but sometimes luck is a lady. Today luck was Cybill Sheperd in a strapless Chiffon gown.
X-Men # 183. It's only a month old and it had an appropriate little throw-away line on Page 18 Panel 2. (So little, in fact, that I missed it the first time I read the book.) Juggernaut and Colossus are fighting in Monahan's Bar and Juggernaut has just used the actual bar in Monahan's Bar as a club on Colossus. Monahan expresses his thanks that his insurance covers "super hero battles."
That line reminded me, that I've never done a full column devoted to super-hero tort liability. I've covered aspects of it, but I've never done it in depth.
To start at the beginning, what is a tort (other than a sound effect for Destroyer Lawyer)? TORT: n "a wrongful act for which a civil action will lie except one involving a breach of contract." In other words, one person, or to use the legal term, the party of the first part, does something which harms another person, or the party of the second part, causing said second party to sue said first party. (Actually, the real legal term for the one who causes the harm is "tortfeasor," but once you've graduated lawschool and have no more use for the term, who would want to remember that? It's hart enough just to remember which party to go to.) Note the definition specifically omits breach of contract suits. That's because there's a completely different body of law other than tort suits to cover breach of contract suits. I think we call them breach of contract suits.
Torts can be of many kinds: negligence, slander, libel, products liability, wrongful death, malpractice, and even plagerism. (And given that last tort, I'd better not delay any longer in telling you that last paragraph's definition of tort came from Webster's Third New International Dictionary of the English Language Unabridged.) There are four basic elements of a tort: duty, breach, proximate cause, and injury. Those of you who are lawyers or who have taken a torts class (although I can't think of anyone other than a lawyer who would want to take a torts class) can skip the next part, I'm going to explain what the elements mean. I want you to skip it, not so much because you already know it and will be bored, but because you already know it, so will be able to catch my mistakes. I've got a reputation and a number 2 ranking in the CBG's Readers Poll to uphold.
Duty means that the tortfeasor owed a duty of some sort to the injured party. It can be a duty imposed by law, like the duty not to exceed the speed limit, or a duty imposed by a court, like the classic duty not to yell, "Fire!" in a crowded theatre. (Has anyone ever really yelled, "Fire!" in a crowded theatre? Has anyone ever really wanted to? I know I've never wanted to yell "Fire!" in a crowded theater, when there was no fire. Have you ever wanted to yell, "Fire!" in a crowded theater when there wasn't a fire? And when did Andy Rooney start writing this column?) The duty owed is generally a duty of care. If a person knows that his acts, or failure to act, will cause someone else harm--such as, but not limited to--physical, emotional, or financial harm, then the first person has a duty not to cause the harm. The law doesn't limit duty to actual knowledge, either. If the first person can reasonably forsee that his act or failure to act will cause the harm, even though he doesn't know the harm will result, he has a duty not to cause the harm. Examples: I have a duty to keep my sidewalk clear of ice, because I can forsee that someone might slip on it and hurt himself. In the same way Ben Grimm has a duty not to rip the doors off of taxi cabs, when he thinks he's been over charged, because he knows it will cause the owner financial harm.
Breach means that the tortfeasor violated his duty of care. He did something. (or failed to do something) knowing that it either would cause, or would probably cause, another an injury of some kind. In other words, I had Bobby Drake glaze my donuts then sidewalk and Ben Grimm turned that four-door sedan cab into a two-door coupe.
Injury means the harm that the tortfeasor knew or should have know would happen, did happen. Someone got hurt physically, emotionally, or financially.
Proximate cause means that the breach of the duty was what caused the injury and not something else. Proximate cause was always the most fun in law school, that's when you got to dream up six impossible things before breakfast to break the causality chain. For example: Ben Grimm accidently lands the Pogo Plane on a building, thereby causing an unplanned and unwanted skylight. His breach caused the injury, so he would be liable for the damages. But what if, just after Ben landed on the roof, It, the Living Colossus, fell onto the roof putting an even bigger hole in it. Now we've complicated the causal chain. Thing's negligence may have caused some injury to the building, but It's negligence caused even more damage. Thing's liability to the building owner is now in dispute, because any money Thing would have had to pay to repair his damage, It would have to pay--and more--to repay It's damage. So Thing could defend in a lawsuit against him that any liability he might have had was voided by It's liability.
Of course, if I owned the building, I still sue Thing. After all, how could I collect from a giant stone statue which doesn't have elbows or knees? This is also called the "Deeper Pockets theory," if you sue, sue everyone and make sure you include the potential defendants who have the deepest pockets--that is the most money. After all, what's the point of getting a judgement against someone who has no money to pay the judgment? No matter how shallow Ben's pockets might be, I guarantee they're deeper than the pockets of a giant stone statue which doesn't have elbows or knees. Or pockets, for that matter
As I mentioned before, there are several types of torts. The most common one is negligence, where the tortfeasor's own carelessness breaches the duty and causes someone an injury. Another is malpractice, where a professional like a doctor or, heaven forbid, a lawyer fails to provide services up to professional standards producing an injury. There are lots more, up to and including strawberry tort without not so much rat in it. I'm not going to go into them all. Just remember if you've got a duty, a breach, a proximate cause, and an injury, you've got a tort.
Now what, you may ask, does all this have to do with super heroes? Well, they break things. When they fight super villains, the heroes tend to break lots of things like, for example, statues, cars, windows, buildings, entire city blocks. Is that a tort? Does Odin have temper tantrums?
The heroes have a duty not to break someone else's property. They know that their fight will probably cause some property damage (and if we're talking about the X-Men, that probability of property damage becomes a sure-fire, ironclad guarantee). By engaging in the fight which breaks things, the heroes breach their duty and commit a tort. They are liable.
Check that, they are sueable, they may not be held liable. You see, the heroes have a couple of defenses they can impose. The most common is the doctrine of emergency. I have talked about this doctrine before. What it says is that if you are acting in an emergency, especially a life-threatening emergency, and during the emergency you commit a tort, you can be absolved of all liability. The policy here is the courts want to encourage people to help other people in emergencies, so to give them that added incentive, the court is willing to forgive torts caused during said help, as opposed to allowing such suits and eliminating all incentive.
Most super hero fights are emergencies, so the heroes would not be liable. However, if the fight is against the Ringer, I'm not so sure the emergency is real. I doubt a court would be willing to forgive anything bigger than a broken clothes line.
Also fights like the aforementioned one in X-Men # 183 aren't emergencies. X-Men # 183 showed nothing more serious or life-threatening than a common barroom brawl. Juggernaut wasn't threatening anyone, Colossus didn't need to fight him. They fought, because they were drunk and angry. No emergency here, so no forgiveness from the court.
Another defense is the assumption of the risk doctrine. This doctrine says, if you willingly place yourself into a situation, which you know is likely to result in someone else causing you some harm, then that other person isn't liable. Example? Remember the disclaimer on the back of your last baseball ticket saying the home team isn't liable for game-related injuries? What that means is, if you're legendary pitcher Bob Feller's mother and accept as a Mother's Day present a ticket to an Indians game in which your son, "Rapid Robert," is pitching and you get hit by a foul ball, the ball park, the team and even the players aren't liable. Being hit by a foul ball is a known risk of going to a ball game, a risk over which the ball park has little or no control. By willingly going to the game knowing you could get hit by a ball, you assumed the risk that you might be hit. Oh, and happy Mother's Day, Mom.
How does that apply to super heroes? Easy, if you live or work Metropolis or Midway City, or especially Marvel's Manhattan, you just know that eventually Dragon Man will come through your store front or Cyborg through your picture window. If, despite your knowing this, you persist in living or working in Metropolis or Midway City or especially Marvel's Manhattan, well "You knew the job was dangerous, when you took it, Fred." If that's not assuming the risk, nothing is.
Okay, that' isn't really assuming the risk. It was a fun joke, but I couldn't allow the joke to let bad law slip into this. If there's a super-hero fight going on over on the next block and you go two blocks over to watch it, that might be assuming the risk, should you get hit by a low-flying Skrull. But simply living in a city where there is super-hero activity isn't enough.
I'm glad I had this chance to talk about X-Men # 183. It gives me a chance to talk about other aspects of it. The story was well-written and well-drawn. What we've come to expect from X-Men.
I hated it.
Peter (Colossus) Rasputen broke up with his girlfriend and fellow X-man, Kitty (Shadowcat) Pryde, because, after Peter's experiences in the Secret Wars, he felt he no longer loved Kitty. He loved another, someone who died in the Secret Wars, more than he loved Kitty. Wolverine got mad at him. Nightcrawler got mad at him. Storm got mad at him. They all felt, as Kitty had sacrificed her life to save him once, he owed her a debt of honor, which demanded he stay with her or give them a chance to work things out.
That is bovine briquettes!
Peter was, perhaps, abrupt with Kitty, but let's give him the benefit of the doubt to know his own feelings. If he truly didn't love Kitty any longer, he did the honorable thing. After all, which is more honorable: to end the relationship cleanly, or to lie about it and let it continue and decay until its inevitable, protracted and far more-painful conclusion? Peter was abrupt. But he was far more honorable than his "friends" who only looked at Kitty's hurt and decided Peter was wrong without ever considering Peter's feelings or Peter's hurt or even Peter's side. With friends like that, better he should join the Brotherhood of Evil Mutants.
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