We were honored to sit down with Elie Mystal and Joe Patrice from Above The Law to discuss legal issues in the Marvel Cinematic Universe on their podcast Thinking Like a Lawyer on Legal Talk Network.
Law of the Marvel Cinematic Universe Guest Podcast on Thinking Like a Lawyer
Law Finds a Way: Dinosaur Liability in Jurassic World
Jurassic World asks the question: What is the liability for a zoo full of dinosaurs that start eating people? Seriously, who is their insurance carrier? Exactly how big was the retainer for the law firm representing them? Are there plaintiffs law firms that specialize in dinosaur bite cases? Do state bar associations offer certifications in dinosaur law? Will Jurassic World at least have one lawyer who does not get eaten by a dinosaur this time?
Mitigating liability would take a lawyer who is a Raptor whisperer. Generally speaking, there is strict liability for zoos where an animal injures a person. Consider the law from Alaska as an example:
(a) Except as provided in (b) of this section, a person who owns or operates a zoo is strictly liable for injury to a person or property if the injury is caused by an animal owned by or in the custody of the zoo.
(b) A person who owns or operates a zoo is not strictly liable as provided in (a) of this section if
(1) The animal that caused the injury was within the animal’s normal place of confinement at the time the injury occurred;
(2) The zoo owner or operator had posted signs at prominent places within the zoo, including at each entrance, warning that the liability of the zoo for injuries caused by animals within their normal place of confinement is limited by law; and
(3) The enclosure within which the animal was confined at the time of the injury was constructed and maintained in a manner that prevents a person who exercises ordinary care customary for a person of similar age, intelligence, and experience from contacting the animal or entering the enclosure.
1990 AK. ALS 101.
Zoos have had plenty of litigation with animals that have attacked human beings. Take a case from 1925, where a zoo had a bear chained to a tree for a feeding. A visitor walked up to the bear and fed the candy. The bear bite the plaintiff’s hand and “threw the visitor to the ground and tore flesh from her leg and hand.” Byrnes v. Jackson (1925) 140 Miss. 656, 665.
The Court explained:
It cannot be the law that the city can place in its parks ferocious and dangerous animals by which the safety, and even the lives, of the public would be endangered without requiring the city to keep such animals securely confined. As a general rule persons having animals wild by nature and of ferocious disposition are required to keep such animals confined absolutely, or pay for any damage sustained by a failure so to do.
Judge Ethridge, Supreme Court of Mississippi, Byrnes v Jackson, at *670.
The Supreme Court of Mississippi held that the city was strictly liable for the zookeeper’s negligence in having a bear chained to a tree. Id.
What does this mean for the upcoming Jurassic World? First, the park has strict liability for injuries caused from dinosaurs that escape their normal places of confinement. Expect to see big warning signs by each dinosaur enclosure. Plus, every attendee should be signing a massive liability waiver that includes clauses such as “Can be eaten by a dinosaur, resulting in death or maiming.”
With that as a primer for the movie, get ready to eat lots of popcorn during Jurassic World.
Lawyers Assemble! Legal Issues in Age of Ultron
Jess and I are out for justice! We take on the legal issues presented in Avengers Age of Ultron, from whether the Scarlet Witch gets a total free pass for working with HYDRA to the legality of breaking a helicarrier out of surplus. Plus we discuss some issues from Agents of SHIELD.
What’s Wrong with Super-Heroes Having Secret Prisons?
Both Arrow and The Flash have the good guys imprisoning super-villains from meta-humans to highly skilled assassins in secret prisons. There are strong arguments these civil rights violations are born out of necessity, because trials for meta-humans can be problematic if jails and the court system cannot contain people who can teleport, control the weather, or shoot energy out of their eyes.
The Flash actually addressed this issue in the penultimate episode of the season. Joe West challenged Barry about moving meta-humans from one black site to another. West further went to the District Attorney for help, only to have her expression best be described as an ulcer exploded while speaking with Detective West about unlawfully imprisoning super-villains.
Here is what is wrong with both Green Arrow and The Flash holding people prisoner in a secret prison: the heroes commit a total denial of due process of law in total violation of the Constitution. This is actually worse for Barry Allen, since he works for the police department.
Let’s explore the different legal challenges for our heroes.
False Imprisonment
Assuming Starling City is in Northern California and Central City is somewhere in Oregon (thus 600 miles apart and coastal cities), we will use both California and Oregon law.
For the Arrow, False Imprisonment is “the unlawful violation of the personal liberty of another.” Cal Pen Code § 236. Furthermore, the law does allow for private citizens to make arrests, however the private citizen must take the arrested person before a magistrate or turn them over to a peace officer without “unnecessary delay.” Cal Pen Code § 847.
The Arrow (and those on Team Arrow) have turned criminals over to the police, but super-villains still end up on Lian Yu without a trial. There is no legal way to justify false imprisonment committed by the Arrow.
The Flash has a similar issue with imprisoning meta-humans at S.T.A.R. Labs. Oregon has very similar laws on citizen’s arrests based on probable cause; however, Barry Allen’s job a forensic examiner for the police makes him a peace officer. ORS § 133.225. Those imprisoned at S.T.A.R. Labs could sue Barry Allen on a 1983 Action for depriving them of their civil rights, including the right to counsel, Miranda warnings, a speedy trial, and all other protections offered by the Constitution.
Kidnapping
Everyone taken to a secret prison has been kidnapped. The Arrow committed kidnapping by taking Slade Wilson by arresting him in Starling City and then transporting him to Lian Yu. See, Cal Pen Code § 207(a).
Barry Allen has committed kidnapping because in the second degree because he intentionally took multiple meta-humans to S.T.A.R Labs with the intent to “interfere substantially with another’s personal liberty, and without consent or legal authority” and secretly confined them where they would not likely be found. ORS § 163.225(1)(b).
Legends of Civil Rights Violations
There is no question that Green Arrow and The Flash are the good guys. However, their knowledge of Constitutional Criminal Procedure has a lot of room for improvement. If only they knew a District Attorney who could give them pointers on the law.
Strict Liability for Fish Oil Dietary Supplements Tainted with Terrigen Crystals?
The Agents of SHIELD season finale left us with the ultimate cliffhanger: No, not what the heck happened to Jemma Simmons, but what is the products liability for the dietary supplement company whose fish oil product was tainted by Terrigen Crystals?
It would not take the Center for Disease Control long to see there was something fishy about people turning stone-like and crumbling into pieces.
First thing first: Dietary supplements are governed by the Dietary Supplement Health and Education Act of 1994, which has less regulation then real medications or food. According to the Dietary Supplemental Health and Education Act of 1994 , the “Federal Government should not take any actions to impose unreasonable regulatory barriers limiting or slowing the flow of safe products and accurate information to consumers.” Paragraph 13 of DIETARY SUPPLEMENT HEALTH AND EDUCATION ACT OF 1994, 1994 Enacted S. 784, 103 Enacted S. 784, 108 Stat. 4325, 4326. Moreover, the Act also states in paragraph 14 that “dietary supplements are safe within a broad range of intake, and safety problems with the supplements are relatively rare.” Id.
If the FDA Secretary declares an imminent hazard to public health from dietary supplements, the Secretary “shall promptly” hold proceedings to affirm or withdraw the declaration. Section 4 of Act.
Given the number of people who will either turn in rubble or mutate into a drooling dog that can teleport, that hearing should go fairly quickly with bipartisan freak-outs over safety.
People who watched family members turn into dust would sue the fish oil manufacturer on a products liability claim. Many states follow the Restatement of Torts, 2nd § 402A on strict products liability. The rule states:
402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) The seller is engaged in the business of selling such product, and
(b) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”
California summarizes the rule as follows: “[a] manufacturer is strictly liable in tort when an article he places on the market … proves to have a defect that causes injury to a human being.” Greenman v. Yuba Power Products, Inc., 377 P.2d 897, 900 (Cal. 1963).
In a 1978 New Mexico case, a Plaintiff failed to prove a can of 7-Up with unknown blood vessels in it was “unsuitable for its intended purpose, but they also had to prove that it was unreasonably dangerous.” Tenney v. Seven-Up Co., 1978-NMCA-090, ¶¶ 7-8 [92 N.M. 158, 160, 584 P.2d 205, 207]. It is a safe bet this case would have a different result today with “blood anything” in a can of soda.
Surviving family members suing the fish oil manufacturer could argue very effectively the fish oil was defective, because taking a fish oil pill should not kill or mutate someone. However, the fact dietary supplements have less regulation thanks to effective lobbying in the 1990s, the dietary company could argue against strict liability for the deaths, because strict liability is not absolute liability.
There is a huge problem for plaintiffs in suing a dietary supplement company that manufacturers fish oil pills: the plaintiffs would have to prove that the risk of the Terrigen Crystals was knowable from currently available scientific knowledge. Just what safety testing does a dietary supplement company have to do on fish oil? Would any anomalies be detectible with the tests the dietary supplement company currently conducts? The answers to these questions could sink the plaintiffs’ case.
Here is a wild idea: If SHIELD did not have a rogue aircraft carrier outside the military chain of command, perhaps reporting to the Secretary of Defense would have alerted the FDA to have all fish products used for human consumption tested. The area could have been quarantined from all commercial fishing given the fact a genetic WMD was lost overboard.
Quick! To the Comic Book Store!
What makes comic book stores great? Josh visited with Anna Warren Cebrian, the owner of Illusive Comics & Games in Santa Clara, California, to discuss why comic book stores are special, her favorite super-hero movies, and how she took members of her staff to an advanced screening of Avengers Age of Ultron. Anna also shared her new Kickstarter project, American Bibliodeck, The Wonderful Wizard of Oz Edition.
Regarding Henry: How Could the Flash Legally Get His Dad Out of Prison?
Did Barry Allen save his mother and forever alter the timeline that turned him into The Flash? No, which is a good thing. However, his dad is still left in prison for being wrongfully convicted of killing Norma Allen in The Flash season finale.
How could a good lawyer help The Flash get his father out prison? It’s time to put on a Blue Power Ring, because there is hope of proving Henry Allen’s innocence in court.
States vary on the exact procedure for setting aside a conviction, but one option is to introduce new evidence showing the conviction was wrong. Some states require a new trial after the conviction is set aside.
Ohio law allows a defendant to seek a new trial and set aside a conviction when “When new evidence is discovered material to the defendant, which he could not with reasonable diligence have discovered and produced at the trial.” ORC Ann. 2945.79(F). The defendant must produce “affidavits of the witnesses by whom such evidence is expected to be given,” and the state may produce affidavits to impeach any defense witnesses. Id.
New York permits a Court to vacate a judgment and set aside a sentence if “[n]ew evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant;” NY CLS CPL § 440.10(g). There must be supporting affidavits if the motion to vacate the judgment is based upon the existence of facts. NY CLS CPL § 440.30(a).
How could The Flash get his father out of prison with a similar statute to vacate a conviction based upon new evidence, without causing a paradox to destroy all of reality?
The answer: A Go Pro camera. Or Polaroid Cube. Basically any personal action camera could do the trick.
The issue is having evidence that the Reverse Flash killed Norma Allen. One option for The Flash is to travel back in time before the murder, place an action camera in either the fish tank, or a book shelf, or some other part of the living room that is not visible or easily overlooked. The recording of the high speed blurs slowed down would demonstrate reasonable doubt that Henry Allen killed Norma Allen.
The big challenge is offering the video evidence in court. A Court would be rightfully confused if there was video footage from 2000 on a camera that did not exist in 2000. A District Attorney would rightfully challenge the authenticity of the video. Moreover, it is unlikely The Flash would appear to testify in Court.
One solution to this issue is the fact the police and District Attorney have openly cooperated together with The Flash. Detective Joe West could prepare an affidavit stating the recorded video was given to him by The Flash and that the footage accurately depicts the crime scene from the night Norma Allen was killed. A Judge in Central City, especially if the District Attorney was not contesting the footage, could find the new evidence either would justify a new trial if not outright setting aside Henry Allen’s conviction.
A lawyer from the Blue Lantern Corps could also give Henry Allen hope of proving actual innocence. In New York, new evidence could prove actual innocence if:
(1) The new evidence will probably change the result if a new trial is granted;
(2) It must have been discovered since the trial;
(3) It must be such as could not have been discovered before trial by the exercise of due diligence;
(4) It must be material to the issue;
(5) It must not be cumulative; and
(6) It must not be merely impeaching or contradictory to the former evidence.
See People v Marino, 99 AD3d 726, 730; People v Tankleff, 49 AD3d at 179.
Video evidence of a yellow blur killing Norma Allen would 1) change the result of Henry Allen’s conviction if there is a new trial; 2) the video evidence would be discovered after the trial, since the technology to record it was invented over a decade later and required time travel to use; 3) there was no way the Defense Attorney’s due diligence could have found evidence only available from time travel; 4) the video would be material to the issue of who killed Norma Allen; 5) the evidence is not cumulative; and 6) it is not offered impeach or contradictory to the former evidence, but verifying what Henry and Barry Allen claimed they saw the night Norma Allen was killed by the Reverse Flash.