Category: Columns

Let’s see now, where were we before we were so rudely interrupted? Interrupted by me when I realized last week’s column was long enough, so decided to split it into two columns. Oh yes, She-Hulk V 3 # 9.

She-Hulk v 3 # 9 is Part Two of the three-part story, “The Good Old Days.” The titular good old days refer to a dock riot in Los Angeles in November of 1940, if that’s “good,” I think someone needs to invest in a new dictionary. The good old days also refer to the fact that during the incident Sam Folger died and now the grandchildren of Sam’s brother, Harold, are suing Steve (Captain America) Rogers for the wrongful death of their great-granduncle. Again, “good?” If you can’t afford a new dictionary, then at least bookmark dictionary.com.

Jennifer (She-Hulk) Walters was representing Cap and Matt (Daredevil) Murdock was representing the Foglers. Matt began his trial with the testimony of Officer McKinley, who told the jury what Harold Fogler said on his death bed sometime in 2014. Here’s Harold’s deathbed confession, as recounted by Officer McKinley.

In 1940, Harold left his mother and brother back in Brooklyn http://brooklyn.com/index.php and moved to Los Angeles. He fell in with a bad crowd. In early November, 1940, the bad crowd met in a warehouse near the Los Angeles docks to plan some trouble they were going to cause there. Harold stepped outside for some air where he was confronted by his little brother, Sam, who had left medical school and come across the country to accost Harold. Sam urged Harold to come back home to their heartbroken mother. Sam brought a friend with him, Steve Rogers, who was still in his pre-Captain America days.

Steve also started in lecturing Harold. And wouldn’t stop. Not even when the bad crowd hauled them into the warehouse. The boss tried to shut Steve up by pointing a Luger at Sam and threatening to kill Sam, if Steve kept talking. Steve kept talking. The boss killed Sam.

Now based on this account of what happened in Los Angels in 1940, Harold Fogler’s grand children were suing Steve Rogers, A.K.A. Captain America, for the wrongful death of their great-granduncle. They said Steve’s “wrongful act” and “neglect” caused Sam’s death.

I say what wrongful act or neglect?

In all U.S. jurisdictions including California, a negligence suit such as wrongful death has four basic elements which must be proven. The defendant must have owed the plaintiff a duty. The defendant must have breached that duty. The breach must have been the proximate cause of some injury to the plaintiff. And the plaintiff must have been damaged by said injuries.

I’ll tackle the injury element first, because it’s the easiest. Sam was killed. He suffered an injury. Death. Death’s the ultimate injury. But did Sam’s family suffer any damages from that injury?

But Sam’s not suing. He’s dead. I’m not so sure how Sam’s injury translates to Sam’s great-grandnephews. The family maintains that Sam would have become a doctor, a successful surgeon and provided for Harold’s family. But can they prove that?

Yes, Sam was in medical school but no one knows Sam would have become a doctor. He could have flunked out. It was 1940, so he could have been drafted and died in World War II. If Sam survived the war and became a doctor, maybe he would have practiced in some rural community in Appalachia where his patients paid him in pigs. Even if Sam had become the greatest and richest surgeon in the history of the United States, he had no legal obligation to provide financial assistance to his brother, his brother’s children, or his brother’s grandchildren. Any financial damages in this suit were speculative. At best.

Speculative damages was only the bad news for the Fogler family. The worse news was that as difficult as proving damages would be, that’s the least of their worries.

The Foglers had to prove Steve had a duty to Sam Fogler and that Steve breached his duty. We know Steve didn’t breach a duty by killing Sam, because the boss killed Sam. The Fogler’s theory of breach of duty was that Steve had a duty to stop talking when the boss threatened to kill Sam and by continuing to talk, Steve negligently caused Sam’s death. As far as I understand the law, Steve had no such duty and, thus, didn’t breach such duty.

The bad crowd committed several crimes against Steve and Sam. Kidnaping. Criminal Threats. Probably more. But those are enough for our purposes, I say in a blatant attempt to limit the amount of research I have to do. No one has a duty to submit to a crime.

If criminals running a protection racket threaten to bomb a store unless the owner pays them money, the owner has no duty to pay the criminals money. If the owner refuses to pay and the criminals bomb the store killing one of the store’s employees, the owner is not liable to the employee’s family for wrongful death.

The owner had no duty to submit to the criminals’ extortion demands. And, because he had no duty to submit, he did not negligently cause the employee’s death by breaching a duty. One can’t breach a duty one didn’t have in the first place. Indeed, most jurisdictions would call the owner a hero for standing up to the extortionists, not a tortfeasor who caused a wrongful death.

The owner’s refusal to pay protection may have resulted in the employee’s death, but it didn’t cause the employee’s death. The only people who caused the employee’s death were the criminals who committed the superseding, intervening act of intentionally bombing the store. They’re the only ones who should be sued for wrongful death.

In the same way, Steve had no duty to submit to the gang’s threats. So there’s no breach of a duty in his acts. Moreover, Steve’s refusal to submit didn’t cause Sam’s death. The boss, a superceding and intervening cause, caused Sam’s death by intentionally shooting him. The Folgers’ case is weak, on three of the four elements for negligence. Steve didn’t breach any duty to Sam by his actions. Steve’s actions didn’t cause Sam’s death. And any monetary damages Sam’s great-grandnephews may have suffered are, as I said earlier, speculative.

Personally, I can’t imagine why any lawyer agreed to take the case in the first place. I especially can’t see why Matt Murdock agreed to take the case. The world now knows that Matt is Daredevil. Matt was just disbarred in New York for, among other things, agreeing to represent a man who wanted to sue Daredevil despite the massive conflict of interests that’s inherent in suing yourself. I can’t imagine why Matt would set himself up for another potential conflict of interests complaint – not to mention a legal malpractice – by agreeing to sue one of his best friends. That’s hardly, as the Code of Professional Responsibility put it, avoiding the appearance of impropriety.

The story tried to explain why Matt agreed to take the case. It was because Steve asked him to take the case. According to Matt, Steve argued, “if I’d ever been his friend, if I cared about what he’d done as Captain America, then I wouldn’t pull my punches.” I don’t buy it. The explanation, that is. I bought the comic. Don’t go accusing me of shoplifting.

I don’t care if Steve and Matt were BFFs, field trip buddies, and even prom dates, Matt shouldn’t have fallen for Steve’s friendship guilt trip by taking the case. Matt should have told Cap, “I can’t take the case. It’s a violation of my professional ethics. And if you’ve ever been my friend, you wouldn’t put me into this situation by asking me to commit malpractice.”

Well that’s it for Part Two of “The Good Old Days.” I promise I won’t write about She-Hulk V 3 # 9 next week. But as it was only Part Two of “The Good Old Days,” I can’t promise that I won’t write about She-Hulk v 3 # 10 http://marvel.wikia.com/She-Hulk_Vol_3_10 and Part Three of “The Good Old Days” in a few weeks.

Can’t promise? I can practically guarantee it.