Marvel’s Original Sin limited series Hulk vs Iron Man has a simple premise: Tony Stark was paid $500,000 (Stark’s Daily Rate) and 2 Bottles of 25 year-old Scotch to conduct a “supervisory examination” of Bruce Banner’s Gamma Bomb to make it more lethal. Because of Stark’s interference, the bomb turned Bruce Banner into the Hulk (plus Rick Jones going into the test area which arguably was a superseding event).

As one can imagine, finding this out rather upset Bruce Banner. And you do not like him when he is angry. However, instead of calling his lawyer cousin Jennifer, he plotted revenge on Tony Stark.

Tony Stark’s sabotage of the bomb creates a huge issue of proximate cause on whether he (and General Ross) are responsible for creating the Hulk and thus enough damage costs to bankrupt Tony Stark.

“Proximate cause” is an act that is “legally sufficient to result in liability.” Black’s Law Dictionary App, 9th Edition. The cause must directly produce an event and would not have occurred “but for” that event. Id. Legal responsibility cannot exist in the air and “must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.” Id., citing W. Page Keeton et al., Prosser and Keeton on Torts § 41, at 264 (5th ed. 1984).

Hulk_ProximateCause_Foreseeability

One element of establishing liability is whether or not the harm was foreseeable. In a case where a plaintiff walked through a Navy test bombing range that was open to the public when not in use, found an unexploded bomb, took it home, struck it on the ground, which caused it to explode, the Court found liability against the Government. Duvall v. United States, 312 F. Supp. 625, 633 (E.D.N.C. 1970). The reasons for liability included that the Navy knew unexploded bombs could be carried off by those who walked through the area and a state law imposed a duty to control explosives from unauthorized possession (the case was brought under the Federal Tort Claims Act which is how the state claim was allowed against the Federal Government). Id. Moreover, New Mexico law imposes absolute liability for any damages proximately caused by explosives, which is where the Gamma Bomb was detonated. N.M. U.J.I. Civ. 13-1627.

If Tony Stark, who acted as an independent contractor hired by General Ross for the the US Government, was the proximate cause for creating the Hulk, both Stark and the US Government could be responsible for Banner’s condition AND all the damage the Hulk had created. The issue would turn on whether or not the Gamma Bomb turning Banner into the “smashing” Hulk was foreseeable. As no one had ever turned into a rampaging grey, green, or red Hulk before from Gamma Radiation, it would be very difficult to argue that Banner’s transformation was reasonably foreseeable from altering the Gamma Bomb.

Hulk_ForeseeabilityBruce Banner was employed by the US Government to build a bomb. While Banner did not want to build a a “continent killer,” General Ross was very interested in Tony Stark’s claim the bomb could be more powerful. Establishing liability for the General retaining Stark to enhance the bomb could be problematic, based on the cases barring property owners from recovering damages against the Federal government for testing nuclear weapons. See, Bartholomae Corp. v. United States, 253 F.2d 716, 718 (9th Cir. Cal. 1957). Moreover, Stark was a $500,000 a day consultant and one of the best weapons designers in the world who did his job: make the bomb more lethal. Federal law would trump any possible state law claims for Tony Stark conducting the work he was hired to perform, barring any Federal statute allowing for claims to be brought against the Government for weapons testing.

However, since Stark’s work was done without Banner’s knowledge, and if Stark’s job was to sabotage the bomb instead of improving it, these facts may negate the nuclear bomb case precedents, because those were controlled tests. If the lead scientist does not know changes had been made, addition risk is created by those altering the bomb. The fact that testing a Gamma Bomb was already an ultra-dangerous activity, making changes in secret could impose absolute liability on Tony Stark and the United States Government.

Now, the unanswered question is how General Ross could retain someone with a $500,000 daily rate without following government bidding requirements.Hulk_Smash_IronMan_1

 

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Josh Gilliland

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.