A question occurred to me when I first watched The Avengers in 2012: “who was going to pay for all this damage caused by the Avengers in the Battle of New York?”

It was a fair question. It was one a lawyer would ask. It is a question I have now asked several times as I have seen the Hulk, Iron Man, Captain America and crew break or blow up anything within their vicinity to fight those who mean them (and I suppose by extension, “us” harm). But my questions did not stop there. I then asked “would our current laws even apply to such superhero damage?” When I answered that question, I went on to yet another…and for that, you need to keep reading.

Practically speaking, who does pay for all the damage they cause?

I see three possible scenarios or a combination:

  1. Insurance companies,
  2. The government, and/or
  3. Our tax dollars.

But we are talking about billions of dollars. Did you see what they did to New York City? Whole buildings crashed down. Parts of the city, especially Hell’s Kitchen, was destroyed. Insurance companies would likely find an exclusion in their policies or sure as heck try. I can just imagine at the first sight or news of any superhero, the carriers would all start drafting addendums to policies to specifically exclude damage caused by superheroes and hurriedly sending them out.

Our government? Sure, that is possible but to what government do we refer? State? They will ask the Feds for help. And the Federal Government cough up billions of dollars without looking for a third party to pay?

Let’s look at the 28 U.S.C. 2680(j).

This United States Code section carves out an exception to the Federal Tort Claims Act (the Act that lets people sue the Federal Government under limited circumstances) for claims “arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.”

But what is war? Congress sure as heck did not authorize a war on Loki and his Chitauri gangsters. All of this was happening behind the scenes, in the clandestine manner in which S.H.I.E.L.D. operates. And taking on face value all the Avengers are S.H.I.E.L.D. agents and S.H.I.E.L.D. is not part of the U.S. military (didn’t we learn they are under United Nations control via the Sokovia Accords? Let’s pretend we did), section 2680(j) does not apply.

The analysis cannot stop there. Think about S.H.I.E.L.D.’s defense. “Hey, if we let Loki and his Chitauri tear through Manhattan, they would have killed more people, destroyed even more property than they did, kept moving through the Eastern United States, eventually arriving at Washington, D.C. and ultimately destroyed the U.S. and world…”

So is that it? The superheroes, angry green monster and playboy weaponized armored suit billionaire get a pass?

That is where most people stop the analysis. Remember the question I mentioned earlier?

What would draft legislation look like to address this problem?

It is not enough to look at current law and break down its application. You have to take it further and enact new legislation to address a problem head-on…and like most legislation that comes out of Washington D.C., it may arguably be a solution looking for a problem but let us for now assume it is not that.

The Farzad-Legal Geeks Act of 2018.

It is 2018 because it would go effect 1/1/18 unless of course we needed emergency legislation.

And that is the placeholder name for now. I am drafting the legislation and since it is posted on the Legal Geeks website, it is as good a name as any for now. Since I am not sure what number the United States Code has reached, let us just start the legislation at 28 U.S.C. section 8000.

28 U.S.C. section 8000

“As used in this chapter, the term “superhuman being” includes human beings who possess superhuman abilities of strength, stamina or otherwise, regardless of how such superhuman beings attain and/or sustain such abilities. The term superhuman being includes but is not limited to those who use technology of any kind to enhance or sustain such abilities.”

This section of the Act would go on to give examples of such superhuman abilities (we have plenty of examples for that) in broad language.

The section would then have a separate place for “extraterrestrial aliens.” That section would read: “Extraterrestrial aliens are beings of any kind that possess superhuman abilities, as set forth above” and then incorporate what we have already laid out.

Finally, this section would have a place for agencies like S.H.I.E.L.D. and would categorize them as “agencies who command, control or otherwise cooperate with the superhuman beings to carry out operations of any kind.”

Yes, I realize that is all pretty darn broad. We want the attorneys to have something to challenge. Otherwise, there is no fun in this.

28 U.S.C. section 8001, et. seq.

From here, we get to the cool stuff.

First, you have the extraterrestrial aliens – Loki, Thor, etc. They get no rope. They should be strictly liable for all damages they cause. Why? Because if it was not for them, we would not need legislation like this. Our superheroes would be locking up normal bad guys. Speaking of bad guys…

Second, any superhuman being that engages in conduct that would be a crime under that State’s laws (whatever State they happened to do their deed) or Federal laws would be strictly liable. This keeps the bad guys from using this statute to escape liability. I am not certain we need the State law incorporation or if Federal law is enough. We can chew on that issue.

Third, you cannot hold the superhuman beings or even an agency like S.H.I.E.L.D liable under ordinary negligence standards for what we will call “services, the sole purpose of which, is to defend against forces that, if not impeded in their efforts, are reasonably likely to cause injury to persons who are not superhuman beings or damage to property.” The point is to ensure before we give the superheroes and agencies a limited immunity, they actually have to be engaged in deep blue hero work.

Fourth, we address the standard of care. This one has several options. Gross negligence standard is one option. Would the burden of proof be preponderance of the evidence, clear and convincing or beyond a reasonable doubt? This is not criminal liability so the latter is likely out. That leaves us with the first two. I like the gross negligence standard and I advocate the evidence should be clear and convincing.

Fifth, we would need a special tribunal. There is no way we can put this in front of 12 licensed drivers (read: jury). The special tribunal would hear these cases, it would comprise of 9 judicial officers, and a vote of 5 to 4 is necessary to find liability.

So there you have it…

I hope this stimulates your legal mind and gets those geeky juices flowing. Got any ideas about this legislation, how it would read and how it may be applied? Start sharing and comment below.

Robert Farzad is the president of Farzad Family Law, APC, that is based in Orange County, California. He has been a California licensed attorney since June of 1996 and helped grow his multi-attorney and multi-office firm from the ground up. Outside the law, he enjoys creative writing, poetry, English and American Literature. This article was written with tongue firmly planted in cheek.

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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, the ABA Web 100 for Best Legal Blog and Podcast categories, 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.