The Law of Superheroes

by James Daily

  Superheroes and Respondeat Superior

  Respondeat superior (“let the master answer”) is the legal doctrine by which employers can be held accountable for the torts of their employees under certain circumstances. 25 Specifically, the employee must be acting within the scope of his or her employment. 26 “An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.” 27 This is a very important distinction, as it makes the difference between liability and non-liability for some superheroes.

  For example, while Bruce Wayne often uses Wayne Enterprises resources when fighting crime as Batman, such crime fighting isn’t work assigned by his employer or subject to his employer’s control. In fact, most Wayne Enterprises employees and shareholders are, like the general public, unaware that Bruce Wayne is Batman. And while Batman may sometimes take actions that benefit Wayne Enterprises (e.g., preventing a criminal from stealing from the company), his motivation is to fight crime in general, not to benefit his employer. Thus, Wayne Enterprises is probably not liable for Batman’s torts. Which is good, because there are a lot of them.

  The situation is very different when one considers DC’s recent Batman Incorporated title. Batman, Inc. is a recent effort by Batman to adopt a franchise model for Batman, funding various Batmen around the United States and the rest of the world. This presents a significant liability problem because Wayne Enterprises directly and publicly funds and equips these new Batmen, although Bruce Wayne’s identity as Batman is still a secret. Since Wayne Enterprises is providing the funding, equipment, and coordination, a court would likely view the Batmen as employees rather than independent contractors. 28 As a result, Wayne Enterprises has opened itself up to potentially massive liability. A more prudent approach would have been to create a separate nonprofit organization (not owned or controlled by Wayne Enterprises) that funds the Batmen; the intermediary organization would shield Wayne Enterprises from liability. Our next example actually follows that model.

  When Tony Stark works with the Avengers as Iron Man, he isn’t there as an employee of Stark Industries, 29 nor does Stark Industries fund the Avengers directly. That’s the role of the Maria Stark Foundation, which functions as a liability shield. However, because the Avengers are themselves a corporate entity of some kind, the Avengers organization may be held liable for the torts of the individual Avengers if the torts were committed within the scope of the members’ employment. But at least liability would be effectively limited to the assets of the Avengers organization (and possibly the Maria Stark Foundation) rather than potentially bankrupting all of Stark Industries.

  The Fantastic Four are, like the Avengers, another example of a superhero team to which respondeat superior would likely apply. It’s not clear exactly how the Fantastic Four are organized as a business, but it is clear that there is some kind of entity that leases the Fantastic Four headquarters and collects licensing revenue from Reed Richards’s patents. When the Fantastic Four act as superheroes, they seem to do so under the auspices of that same organization. As a result, the organization could be liable for any torts they commit while on a mission.

  Piercing the Superhero Corporate Veil

  What about liability flowing in the other direction? Could Bruce Wayne or Tony Stark be personally liable for the actions of Wayne Enterprises or Stark Industries? Although most of their wealth is probably tied up in shares of stock in their companies, both of them are independently wealthy and would make very attractive targets in a lawsuit. We noted that “piercing the corporate veil” to sue the managers or shareholders of a corporation, the partners of a limited liability partnership, or the members of an LLC is very difficult. But it’s not impossible.

  Batman sets up franchises. Grant Morrison et al., Resurrector, in BATMAN INCOPORATED 2 (DC Comics February 2011); Grant Morrison et al., Scorpion Tango, in BATMAN INCORPORATED 3 (DC Comics March 2011); Grant Morrison et al., Nyktomorph, in BATMAN INCORPORATED 6 (DC Comics June 2011).

  There are a few different theories under which a court will pierce the corporate veil. A common one is the “alter ego” theory, under which the corporation is a “mere extension of the individual.” 30 Some of the factors that a jury may look to when deciding if a corporation is an alter ego include

  if the individual controls the corporation and conducts its business affairs without due regard for the separate corporate nature of the business; or that such separate corporate nature ceased to exist; or if the corporate assets are dealt with by the individual as if owned by the individual; or if corporate formalities are not adhered to by the corporation; or if the individual is using the corporate entity as a sham to perpetrate fraud or to avoid personal liability. 31

  Luckily for our heroes, this doesn’t come up much. Both Wayne Enterprises and Stark Industries are massive, well-run conglomerates with boards of directors (and in the case of Wayne Enterprises a professional CEO). Both companies are generally good “corporate citizens” that follow the law. As a result, it would be highly unlikely for either Wayne or Stark to be personally liable for anything their respective companies did.

  The situation with the Fantastic Four is a little closer cut. The company seems to consist of the Four themselves, without a lot of other employees or directors providing oversight. They also live in the company’s headquarters. As a result, the Fantastic Four will have to be careful to maintain a separate corporate existence (e.g., maintaining separate corporate accounts, signing letters and documents as corporate officers rather than individuals, properly maintaining corporate minute books).

  Superpowers and the

  Americans with Disabilities Act

  In chapter 1, we discussed how superpowered individuals, specifically mutants, could be protected by the Constitution. But there’s more to civil rights than the Constitution. Congress and the state legislatures have also passed laws that go beyond the constitutional minimums, and many of these laws primarily regulate businesses rather than individual behavior. One of the most important of these is the Americans with Disabilities Act. 32 The ADA is particularly important because people with disabilities are not a protected class under the Constitution, so their legal protections must come from the legislature. 33 Could mutants and other people with superpowers be covered by the ADA?

  The Scope of the ADA

  The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” 34 Perhaps equally importantly, a disability can also simply consist of “being regarded as having such an impairment.” 35 In other words, even if you aren’t actually impaired, it’s sufficient that you are discriminated against in violation of the ADA because you are regarded as being so impaired. Both of these definitions depend heavily on the meaning of phrases like “major life activity.” Luckily, the statute goes on to define those terms as well:

  [M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.…[A] major life activity also includes the operation of a major bodily function.…36

  Furthermore, Congress intended for all of these terms to be construed broadly:

  The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.…An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.…An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.…The determination of whether an impairment substantially limits a major
life activity shall be made without regard to the ameliorative effects of mitigating measures.…37

  Armed with a sense of the scope of the ADA, let’s analyze whether it might apply to superpowers.

  What Superpowers Qualify?

  Right off the bat, we can see that, in general, voluntarily controlled superpowers generally will not qualify as disabilities. It’s pretty hard for, say, the ability to fly to substantially limit a major life activity, especially if you can simply choose not to use it. But not all superpowers are voluntary, and whether the power is continuous (like Rogue’s involuntary life-draining power) or only poorly controlled (like Bruce Banner’s transformation into the Hulk) doesn’t matter because an episodic impairment still counts.

  Before her power evolved, Rogue’s involuntary, lethal ability to drain the life out of others simply by touching them would have qualified because touching others seems like a major life activity. Certainly it is a common part of communication and many jobs (e.g., handshakes, receiving money from customers and returning change). Bruce Banner’s power definitely qualifies as it also frequently interferes with work and communication (“Hulk smash!”). Cyclops’s power may also qualify. A slightly less serious example along the same lines is Moist from Joss Whedon’s Dr. Horrible’s Sing-Along Blog, whose “power” consists of the uncontrollable production of prodigious amounts of sweat.

  Ready for that shower now? Zack Whedon et al., DR. HORRIBLE AND OTHER HORRIBLE STORIES (Dark Horse September 2010).

  Although Hank McCoy’s (Beast) and Kurt Wagner’s (Nightcrawler) physical appearances might not be considered outright disabilities, they may be discriminated against because they are perceived as being impaired, which fits 12102(C).

  The Protections of the ADA

  The ADA offers many legal protections to disabled individuals. In general, discrimination on the basis of disability is prohibited in employment, provision of public services, and in public accommodations and services provided by private entities. For the purposes of this chapter we will focus on employment discrimination.

  The general rule against employment discrimination is this:

  No [employer] shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 38

  Seems straightforward and complete, right? However, there are important defenses to charges of discrimination, such as when discrimination is “job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation” and when a qualification standard includes “a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.” 39 Reasonable accommodation is a broad term, but it’s basically anything that isn’t an undue hardship (“an action requiring significant difficulty or expense”).

  Since there are defenses, the natural question is, what can employers get away with?

  Reasonable Accommodation and Undue Hardship

  Two examples of powers that can almost certainly be reasonably accommodated are Rogue’s power and Cyclops’s power. For most jobs, Rogue could simply be allowed to wear gloves and other appropriate clothing. There are very few jobs for which Rogue could not be reasonably accommodated. Similarly, Cyclops could be allowed to wear his blast-taming glasses or other appropriate headgear. He probably couldn’t be reasonably accommodated as an actor in a commercial for eyedrops or the like, but that’s about it.

  Other cases are less clear. Bruce Banner would probably not be so well protected. His power would definitely raise the issue of “a direct threat to the health or safety of other individuals in the workplace.” Any work environment that involved close interaction with other employees, customers, or other sources of stress would pose a significant challenge. In many cases there simply may be no reasonable accommodation for someone who turns into an “enormous green rage monster” at the drop of a hat.

  Although most superpowers are not impairments, many superpowered individuals (particularly mutants in the Marvel Universe) face discrimination despite the fact that they are not actually impaired. In addition, there are some superpowers that do impair their possessors. As a result, the ADA would protect many superpowered individuals from discrimination in several important areas of life.

  Supervillains and Business Law

  Sometimes even supervillains can find themselves dealing with business law, at least on the wrong end of a lawsuit. This example from Manhunter touches on labor laws, employee class actions, and bankruptcy.

  In the story, a multinational pharmaceutical/biotech/medical device company called Vesetech runs a plant in El Paso, Texas, where it employs many Mexican women who live in Ciudad Juárez across the border. While investigating the disappearances of a large number of women in the area, Kate Spencer (a.k.a. Manhunter) discovers that Vesetech was kidnapping the women and using them in unethical medical experiments. After busting up the supervillain-led research team, Spencer, who is also an attorney, announces at a press conference that she is leading a class action lawsuit against the company on behalf of the former employees.

  Federal Labor Laws

  Kate says that Vesetech pays the women “pennies,” suggesting a violation of minimum wage laws. For violations of the federal minimum wage (the same as the state minimum wage in Texas), employees can sue for both back wages and an equal amount as liquidated damages. 40 However, violations of the federal minimum wage law are frequently enforced by the Department of Labor’s Wage and Hour division, which is empowered to sue on the employee’s behalf. 41 If the Department of Labor steps in, then that terminates the employee’s right to sue on her own behalf. 42 So there’s a very good chance that part of the suit could be dismissed. But there would still be the injuries suffered by the women who were experimented on.

  Kate Spencer announces her class action suit against Vesetech on national news. A good trial lawyer knows how to make good use of publicity. Marc Andreyko et al., Forgotten, Part Six: Full Circle, in MANHUNTER (VOL. 3) 36 (DC Comics January 2009).

  Class Actions and Federal Jurisdiction

  Kate also announces that she will represent the women in a class action lawsuit, but things aren’t that simple. A judge must first certify the class, and the plaintiffs in this case may not meet the requirements. For simplicity we’ll assume that the case would be brought in federal court. Bringing a case in federal court requires (among other things) that the court have subject matter jurisdiction. That is, since the federal courts are courts of limited jurisdiction, it must be the kind of case that the federal courts can address.

  In brief, federal courts can get subject matter jurisdiction three ways: the “Arising Under” clause, 43 diversity of citizenship, 44 and supplemental jurisdiction. 45 The Arising Under clause grants jurisdiction in cases involving a question of federal law. Diversity of citizenship applies when no plaintiff is a citizen of the same state as any defendant and the amount in controversy is at least $75,000. Supplemental jurisdiction allows state law issues to tag along when they are related to another claim or controversy that the court had jurisdiction over.

  In this case, federal jurisdiction seems likely since the plaintiffs are all Mexican citizens, whereas the defendant is a US corporation, giving a federal court jurisdiction under diversity of citizenship. 46 There may also be federal question jurisdiction (e.g., if the women sue for wages and the Department of Labor doesn’t step in).

  In any case, federal class actions are governed by Federal Rule of Civil Procedure 23. There are several requirements, 47 but the biggest issue in this case is probably commonality: Are there “questions of law or fact common to the class?” The problem is that there are at least two groups of plaintiffs: women who were paid below minimum wage and the women who were experimented on (or at least the deceased women’s estates). Admittedly, members of
the latter group may also be members of the former group, but the questions of law and fact are very different between the two groups. It is possible that a federal court would consolidate the cases, but they would probably best be brought as two separate suits.

  But even that may not be enough. Unless the women were subjected to at least broadly similar mistreatment at the hands of Vesetech’s “scientists” then a class action may not be the best way to resolve their claims. A court could decide that the women’s injuries are too unique to be treated as a class.

  The Measure of Damages

  During the press conference Kate explains that data gleaned from Vesetech’s human experiments may have been used to develop a range of highly profitable and widely used products. Kate says that this is “fruit of the poisonous tree” (a rather terrible misuse of a legal phrase; read Chapter 4 on criminal procedure to learn why). Anyway, it is implied that this has something to do with the women’s case. Ordinarily the women’s damages would be what it took to compensate them (or their estates) for their injuries, plus likely punitive damages of up to ten times the compensatory damages. 48 The women would ordinarily not be entitled to any share of the ill-gotten gains derived from their suffering.

  However, the equitable remedy of restitution may allow the women to recover some of those ill-gotten gains. But as an equitable remedy, restitution is discretionary, so a court may or may not impose it.