Suing The Avengers

(Author's note: I don't want to be a one-trick pony, so this'll be the last of my legal movie analyses for a little while - unless there's a demand... or unless I change my mind).

Warning: Spoilers! If you haven’t seen The Avengers and don’t want to know what happens, read no further.

This past May, as I sat in the theater thoroughly enjoying Joss Whedon’s “The Avengers,” I began to wonder: what if I had been injured by falling debris during the final battle between the Avengers and the invading Chitauri army?  Anyone who has seen a comic book movie knows that superheroes cause a lot of collateral damage.  The Avengers is a unique example because destruction isn’t solely the result of the alien horde descending on New York with their massive floating bio-mechanical weapons.  The good guys who are charged with protecting the city cause their fair share of damage as well.  Unlike previous superhero entries, The Avengers have not one, but three super-powered being (Hulk, Thor, Iron Man), each with significant anger issues.

In fact, it has been estimated that approximately $160 billion in property damage was caused during the battle of New York.  That figure is staggering, not least of which because, thanks to the unsurpassed leadership of Captain America, the Avengers were able to keep the battle confined to a 4-6 block radius.  We also know that the Chitauri invaded New York without warning and the sudden nature of the attack meant that the Avengers did not have enough time to clear the battle zone of bystanders.  The film goes out of its way to show us innocent civilians caught in the crossfire.  It stands to reason that with so much damage, a storm of laser fire, and so little opportunity to get innocents out of harms way, someone is going to get badly hurt.  So when the battle is done and the superheroes have long since departed, who can you sue to recover your medical costs?

The obvious answer is to sue S.H.I.E.L.D.  After all, S.H.I.E.L.D. assembled the Avengers, and in legal parlance, is both the “actual” and “proximate” cause of the injuries.  But S.H.I.E.L.D. is a government agency and is protected by Sovereign Immunity, a legal doctrine that prevents government entities from being sued for monetary damages.  In certain situations, however, the government can waive its immunity by way of the Federal Tort Claims Act (FTCA), which allows federal agencies to be sued for damages as if they were private entities.  Under the FTCA, if you can prove that the Avengers acted without due care in their rescue of the city, you can sue S.H.I.E.L.D. for the negligent acts of its employees (in tort law, we call this Respondeat Superior).

Thus, in order to sue S.H.I.E.L.D. under the FTCA, we must determine if Iron Man, Hulk and Thor are employees of S.H.I.E.L.D.  The FTCA defines employee as, “officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty… and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation….”  So, were Iron Man, Hulk, and Thor acting on behalf of S.H.I.E.L.D. in an official capacity?

It’s best to stop right here because this will lead us down a rabbit hole that isn’t worth the travel.  S.H.I.E.L.D. can probably be liable for your medical costs, but there are inherent problems with suing a clandestine black-ops organization staffed predominantly with super-powered beings.  Chiefly, how can you know such an organization even exists?  To the best of my recollection, the finale of The Avengers had various news reports blaming the team individually for the destruction and nary a mention of their handler organization was to be found anywhere.  As far as the public is concerned S.H.I.E.L.D. doesn’t officially exist.  And even if you were to somehow hale them into court, you're only going to anger them.  And we all know what happens when you get Bruce Banner angry.

Besides, there’s lower hanging fruit to be had.

You can sue Tony Stark in his individual capacity for negligent rescue.  After all, he’s a billionaire and can afford it.  Not only that, he’s the sole member of the Avengers whose real life identity is known to the public at large.   A lawsuit against Stark sounding in negligence is a goodly bet.

In tort law, there is generally no duty to rescue someone in distress.  However, if you do commence a rescue, it must be done reasonably.  Any defendant who rescues unreasonably can be liable under a negligence action if the aggrieved party is injured as a result of the unreasonable rescue.  In this case, there’s no legal precedent instructing us how to deal with an armored man wearing jet boots leading an alien horde bent on destruction through the city.  Even still, I would be willing to argue in front of a judge that Stark’s actions, though well intentioned, were unreasonable.  Why?

  1. At extreme speed, Stark led hundreds of aliens on a chase through the canyons of Manhattan, weaving in and out of columns, buildings, and directly into heavily trafficked areas.  Any professional driver will tell you that as velocity increases, there’s an inverse relationship with control (there’s a reason the world’s fastest cars are driven in the middle of the desert… they can’t stop and don’t corner).  Stark would know this due to his extensive time in the Iron Man prosthesis.
  2. Both Stark and his alien nemeses fired lasers at each other for the duration of this chase.  Logic tells us how difficult it is to hit a moving target; it is even more difficult when both targets are moving at great speed.  The likelihood of both Stark and the Chitauri warriors accidentally striking bystanders and real property with their laser blasts is increased exponentially.  Moreover, Stark is a world-renowned genius (he built a fist-sized fusion reactor in a cave with only spare missile parts, after all).  He either knew or should have known the likelihood of causing bystander injury, yet he continued to lead chase through Manhattan.
  3. Later in the battle, Stark led a hundred foot long space snake directly down Park Ave into the path of Bruce Banner, whose ability to stop the snake was, as far as Stark is concerned, highly questionable.  At this point in the battle, Banner had not yet transformed into the Hulk and had not demonstrated to his teammates that he could call out the Hulk at his command (it was pretty awesome though, right?).  As far as Stark knew, he was leading that beast right into the heart of Manhattan where it would crash into the team, killing every member of the Avengers, destroying a significant part of mid-town, and possible murdering hundreds – if not thousands – of innocent New Yorkers.

When you willfully undertake a rescue that could wind up killing thousands, that is per se unreasonable.  If I were a lawyer in the Marvel Universe, I would be unhesitant in representing a class-action suit against Tony Stark in his individual capacity.

There may be more causes of action that I just can’t think of at the moment, but I think Stark is your best bet to recover damages in a case like this.  And honestly, you’re lucky if you get injured in an attack that was prevented by Iron Man.  Imagine if all that damage were caused by a hero with no assets... like Aquaman.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA