Someone only identifying themselves only as “Kara Zor-El” asked the following questions in our request form: Could you do an article addressing whether Supergirl or any superhero is liable for personal property damage. Who pays for repairs? Insurance? Can Supergirl be sued? If so, how do they get her to pay?
The answers to these questions is…it depends. Supergirl’s super-hero activities generally fall into three categories: 1) Rescuing others; 2) Conducting law enforcement with the DEO; and 3) Vigilantism. The capacity that Supergirl is acting will impact her possible liability for destroyed property.
Supergirl the Good Samaritan
Supergirl the series is a case study in the duty to rescue. Supergirl begins her hero career rescuing a crashing plane in the pilot episode; stopping robberies, flying ambulances to the hospital, and rescuing pet snakes in “Stronger Together;” rescuing people in a massive freeway accident in “Fight or Flight;” and stopping a car with a road-raging driver from taking out children crossing the street in “Red Faced.” Kara Zor-El is the poster child of rescuing those in need.
There is no general common law duty to rescue someone unless there is a special relationship. Rhodes v. Illinois Cent. Gulf R.R., 172 Ill. 2d 213, 232-233 (Ill. 1996). Society does encourage people to help others with “Good Samaritan” laws, which have the “broad goal” to “prompt aid by people under no duty to act, who otherwise might be dissuaded by the prospect of ordinary tort liability.” Miglino v Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 348 (N.Y.2013).
Supergirl’s public rescues should be protected by the Good Samaritan doctrine. In essence, if a “volunteer who, having no initial duty to do so, undertakes to come to the aid of another . . . is under a duty to exercise due care in performance and is liable if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.” Foremost Dairies v. Cal. (1986) 190 Cal.App.3d 361, 365, citing Williams v. State of California (1983) 34 Cal.3d 18, 23.
Supergirl should be protected from liability, unless she fails to exercise due care and increases the risk of harm. As such, repair costs could fall on insurance.
Supergirl the State Actor
Supergirl frequently works with the DEO in protecting the United States (and Earth) from alien threats. As such, any actions taken while Supergirl is working with the DEO would make her a state actor.
There is ample authority that while Supergirl is a state actor, she would not be subject to liability for the destruction of private property. For example, a city was not liable for the negligence of an employee who negligence burning garbage at the dump resulted in a fire that destroyed a home. Miller v. Palo Alto (1929) 208 Cal. 74, 75-76. Moreover, there are very old doctrines that give elected officers to destroy buildings in the path of a fire, in order to stop the spread of the fire. RUSSELL v. MAYOR, ETC., OF NEW YORK (N.Y. 1845) 2 Denio 461, 477.
Courts do not like to second-guess fire fighters who make snap decisions to fight fires. As such, Courts have held that government is immune from tort liability to individual property owners for damage resulting from the discretionary actions of fire fighters in combating fires. Strickland v. Dep’t of Agric. & Consumer Servs. (Fla.Dist.Ct.App. 2006) 922 So.2d 1022, 1023-1024.
Supergirl has not destroyed any buildings or throwing cars at villains, but if she ever did, there is at least some precedent she would be protected for liability.
Supergirl Gone Vigilante
Supergirl conducting law enforcement on her own is vigilantism. Granted, it is probably the friendliest kind of vigilantism, as no one is getting ripped into two messy pieces. Kara does not vaporize those committing robberies. If anything, her actions are best described as being committed in the defense of others and use a reasonable amount of force.
Supergirl’s vigilantism is probably the most high-risk activity she engages in, because she is not a state actor. This area is where she could find herself in the most legal jeopardy.
Who Pays for the Clean-Up?
We do not have case law where super-heroes save cities from alien invasions. However, we do have some guidance from disaster litigation. States such as New York and Ohio follow the general rule that “general rule is that public expenditures made in the performance of governmental functions are not recoverable.” County of Erie v. Colgan Air, Inc., 711 F.3d 147, 150 (2d Cir. 2013). As such, counties have been unable to recover costs responding to, and cleaning up, plane crashes or damages from a blackout. These costs could include wages, overtime, fire, sanitation, and hospital personnel who performed services in response to the emergency. Id.
If this theory applies to Supergirl, National City could not sue her for clean-up costs after saving the airliner from crashing, but leaving it in the river, in the first episode. Responding to emergencies is something that governments are required to do by their very nature. The city, state, and Federal government would have to endure those clean-up costs.
Supergirl might have a problem with the oil spill she caused, because many states allow the state to recover clean-up costs. State of New York v Getty Petroleum Corp., 89 A.D.3d 262, 264-265 (N.Y. App. Div. 3d Dep’t 2011). However, since Supergirl arguably was a state actor responding to the direction of the fire captain, she has a plausible defense to any liability.
Private individuals suing Supergirl for damaged property would likely be on a negligence theory. Serving her would be highly problematic and possibly would have to be done by publication. If Supergirl were seeking legal advice, she should purchase a bag of charcoal and spend an evening crushing them into diamonds. Exercising care not to flood the diamond market, she could retain a lawyer to create a victims’ trust fund, have her attorney sell the diamonds on the market, and fund the trust with the profits. Those who have a claim against Supergirl could then file through her attorney for property claims. This would be good public relations showing she is the “super-hero who cares” if someone’s Tesla is used as a ballistic weapon.