How to Sue the Kingpin for Breaching the Spider-Verse

December 28, 2018

Go see Spider-Man Into the Spider-Verse. The film is a testament to all Spider-Man comics and a complete joy. Major spoilers ahead true believers, so don’t read any further until you see the movie.

The Kingpin of Earth-1610 commissioned Dr. Olivia Octavius to build an inter-dimensional collider to find identical versions of his late wife and son. The experiments caused a breach into multiple different universes, allowing property from different realities to crash into the New York of Earth-1610. Multiple versions of Spider-Man and other web-slingers were also pulled into Earth-1610 against their will.

What are the possible causes of action against Wilson Fisk for his experiments?

The issue of property damage on Earth-1610 is the most lineal one to analyze (well, excluding what Kingpin did to Peter Parker of Earth-1610). New York case law examining property damage from intentional blasting has strict liability for property damage. Spano v. Perini Corp., 25 N.Y.2d 11, 17-18 (1969). Case law originally allowed a defendant to avoid liability if they could show they took reasonable care to avoid injury, however that view was rejected, because someone who engages in blasting should NOT be able to “to impose this risk upon nearby persons or property without assuming responsibility therefor.” Spano, at *18, rejecting Booth v. Rome, W. & O. T. R. Co., 140 N.Y. 267 (1893).

The inter-dimensional collider experiments were inherently dangerous activities, in the same category as blasting operations. As such, Wilson Fisk would be held liable for injuries caused to neighboring property with or without trespass. Cont’l Ins. Co. v. Great Lakes Dredge & Dock Co., 163 Misc. 2d 594, 595 (App. Term 1994). The only issue is how to prove damages were caused by the inter-dimensional collider experiments.

Plaintiffs would need to prove that “but for” the inter-dimensional collider experiments, their property sustained damage. This could include that prior to the time of the experiments, their property did not have any damages, and after the experiments their property was damaged. This could be from testimony, but cell phone photos, street camera footage, and other evidence to document property condition might be required to show the damage was caused by property from an alternate reality crashing into the subject property in the lawsuit

One possible complexity is that the alien property that caused the damage returned to its reality after the threat was neutralized, which would require plaintiffs to present evidence with photos or video of the damage. While it would be ideal to have actual footage or alternate realities crashing into damaged property, a court likely would not require that much proof given the extreme nature of the incident.

The harder question is for individuals on alternate Earths to sue Wilson Fisk for damage to their realities. There are substantial service of process and forum non conveniens issues in seeking relief for damage caused in mirror universes.

The Original Sin of Gamma Bombs & Proximate Cause

Josh Gilliland

July 22, 2014

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).

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.

Bruce 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.