Does Luke Cage Have a Duty to Warn Attackers He’s Unbreakable?

Marvel’s Luke Cage on Netflix is excellent. The series has perhaps the most Easter Eggs from other Marvel stories, including Avengers, Iron Man 2, Jessica Jones, and Daredevil. There are wonderful homages to the Power Man and Heroes for Hire comics of the 1970s and 80s.

Henchmen learned the hard way that Luke Cage has unbreakable skin. In the first episode, one enforcer doing a shakedown for money from a small business owner landed a successful punch on Luke’s face. This resulted in a slow motion shattering of his fist with a compound break of his radius (and possibly the ulna).

Does Luke Cage have a duty to warn people who attack him that doing so can result in shattered bones?

The short answer: No. People should not try assaulting Luke Cage. That’s a crime. The thugs should expect criminal charges while they are in the emergency room.

New York’s law on the duty to warn does not specifically address human beings with extreme strength and bulletproof skin. Generally speaking, a landowner has no duty to warn of open and obvious danger, just dangers that a person would be unaware of on the property. Marangiello v Stop & Shop Supermarket Co. LLC (Sup.Ct.) 2011 NY Slip Op 31469(U), ¶¶ 3-4.

Applying this standard to a super-hero, Luke Cage is not obviously dangerous: Luke is just a person. Thus, having unbreakable skin would be considered “latent,” because the condition is not obvious. This would tend to support that Luke would have to tell people they could be injured if they have an impact with him. This would make sense if Luke was playing a contact sport, however, would not make sense with an attacker as a matter of public policy: Attacking people is a crime; playing a sport is not.

Golfers have no duty to warn other golfers on a fairway they are going to hit ball, unless they are in the intended line of flight. Rinaldo v. McGovern, 561 N.Y.S.2d 1006, 1007 (App. Div. 1990), citing Noe v Park Country Club, 115 AD2d 230. Golfers also do not have a duty to warn those driving by the golf course they will hit a ball. Id.

Suppliers of products with dangerous conditions have a duty to warn of latent defects. Young v. Elmira Transit Mix, Inc., 383 N.Y.S.2d 729, 731 (App. Div. 1976). In a case where purchasers of cement mix suffered third-degree burns when mixing the wet cement that came into contact with their skin, the supplier was found to have had a duty to warn the plaintiff of the risk. Id.

Luke is a lot like a golfer on the golf course, and not burn inducing cement mix. Luke would not have a general duty to warn people he is both strong and unbreakable. No one being assaulted has to warn an attacker, “I will hit you hard,” when defending himself or herself. The same standard should apply to Luke Cage’s bulletproof body when he was assaulted by Cottonmouth’s goons.