Tagged: Negligence

The Law Is A Ass

Bob Ingersoll: THE LAW IS A ASS #340: THE ETERNAL LIGHTNESS OF BEING BATMAN

1396880800000-BMETRI-Cv1-1-50-varThere are, among people of a particularly black-humored and waggish bent, jokes that you can’t have manslaughter without mans laughter. Well, I’m not laughing. Not only does manslaughter entail the unlawful killing of another human being – something which is not inherently humorous – but manslaughter is also how the long, arduous Bataan Death March that is Batman Eternal started. And there ain’t anything inherently humorous about that either.

Batman Eternal started with Commissioner Jim Gordon chasing fleeing felon Derek Grady into a subway station. The chase ended on the subway tracks, while two subway trains were approaching the station on the same track, from opposite directions. Grady was standing in front of a transformer box and Gordon saw a gun in his hand. So Gordon shot at Grady’s gun, intending the classic Lone Ranger disarm.

(If your only experience with the Lone Ranger is the Johnny Depp movie, I pity you. The real Lone Ranger was more competent than the oaf in that movie. He never took a life. He shot the guns out of the bad guys’ hands. He was that good. Oh yeah, and his horse couldn’t climb trees, either.)

We’ll never know whether Commissioner Gordon was as good a shot as the Lone Ranger. He didn’t shoot the gun out of Grady’s hand, because Grady didn’t actually have a gun. Gordon had been tricked into thinking he saw a gun. Gordon’s bullet passed through the nonexistent gun and hit the transformer box behind Grady. The box exploded. Then the switching mechanism for the tracks didn’t activate. Neither of the two trains switched to a new track. They collided head on causing one hundred sixty-two civilian deaths. Jim Gordon was arrested on one hundred sixty-two counts of manslaughter. One hundred sixty-two counts, one arrest. It would have been silly to arrest him one hundred sixty-two times. And a waste of fingerprint ink.

Like I said, not a laughing matter. Except, you know, I’m still going to make more jokes in this column, because, you know, it’s what I do and I’m, you know, a hypocrite. But I’m also a pretty good criminal defense attorney. And even though I haven’t practiced in years, I can still be a pretty good pretend attorney for fictional characters.

For example, I know it’s not enough that the state of New Jersey charged Jim with one hundred sixty-two counts of manslaughter. What’s important is that, like bubble gum on the underside of a desk, the charges have to stick. The one hundred sixty-two manslaughter charges against Jim? They’d stick worse than an unlicked postage stamp.

New Jersey Statute 2C:11-4 two kinds of manslaughter, aggravated manslaughter and simple manslaughter. (Okay, there’s also vehicular manslaughter, but Gordon was on foot, so fergedaboudit!) Further complicating matters – because people who write penal codes are never satisfied until they can complicate matters by creating multiple ways for every crime to be committed – each type of manslaughter has two variants. A person is guilty of aggravated manslaughter if he either causes a death under circumstances while manifesting extreme indifference to human life or causes a death while attempting to elude a law enforcement officer. A person commits simple manslaughter when he either recklessly causes the death of another or causes the death of another while in the heat of passion resulting from reasonable provocation. Fortunately for our purposes, just like vehicular manslaughter, two of those four manslaughters are off the table.

James Gordon didn’t cause anybody’s death while eluding the police. He was the police and Grady was eluding him. Only the eluder can commit manslaughter, not the eludee. (I’ve always wanted to make one of those inane “er”/“ee” comments, One more thing off my bucket list. Moving on to my next item. You wouldn’t happen to know where I can get a gallon of chipotle mayo and yak’s milk, would you?)

Gordon also didn’t cause anyone’s reasonable provocation. While a fleeing felon not surrendering his gun might constitute reasonable provocation, that’s not the case here. Gordon thought he saw a gun, but every witness, including Batman, said Grady didn’t have a gun. Even I, the omniscient narrator, tell you, Grady didn’t have a gun. (Why Gordon thought he saw a gun is a long story, but so is Batman Eternal. How Gordon was made to believe Grady had a gun was ultimately revealed in Batman Eternal # 19. As I’m writing about Batman Eternal # 1 and don’t want to write Spoiler Warning this week, I won’t go that story today.) What’s important is that Grady didn’t have a gun. No gun, no provocation. No provocation, no heat of passion. (No Heat of Passion, sounds like the worst Harlequin Romance ever!)

So what about causing a death with extreme indifference to life or causing death recklessly? Like your Christmas centerpiece in January, they’re still on the table.

Gordon said the transformer box behind Grady was shut down and shouldn’t have exploded. He also said the transformer box only controlled the station giving power to the station’s lights and turnstiles. It didn’t control the tracks or their switching boxes. Gordon shot at the gun he thought he saw even though it was right in front of the transformer, because he believed even if he hit the transformer by accident, that would not cause the two subway trains to collide.

For the sake of argument, let’s assume Gordon was correct. I say this because if Gordon was wrong, then he was guilty of manslaughter. End of story. End of column. And I still have a few jokes I’ve got to put somewhere.

I also say this because, let’s face it, Gordon was set up. Somebody tampered with the transformer and the tracks. Eventually, Gordon will be cleared and be commissioner again. We all know this, even if Batman Eternal hasn’t told us how he was set up or who did it yet.

Anyway, if Gordon was correct, then he wasn’t guilty of manslaughter. If shooting the transformer by accident wouldn’t have had any effect on the trains, then he didn’t show indifference to life. He honestly believed that if he accidentally shot the transformer, it wouldn’t affect anything.

As for reckless manslaughter, recklessness requires proving the conscious disregard of a substantial risk that a death would result from one’s actions. If shooting the transformer box wouldn’t do anything, then there wasn’t a substantial risk of death from his actions. Not even the Neil Hamilton  Commissioner Gordon from the Batman TV show, who set the standard for police incompetence, could disregard a risk that wasn’t even there.

Even if Gordon acted negligently in shooting the box, that can’t get him convicted of manslaughter. In the eyes of the law, a negligent act, or simple accident, does not rise to the level of a reckless act. In New Jersey, manslaughter has to be reckless not negligent.

The prosecutors might argue Gordon was wrong; the transformer wasn’t shut off and did control the switching mechanisms, so shooting toward it was reckless and showed indifference toward life. It should be pretty easy to prove whether Gordon was correct. Any competent electrician could look at the station’s wiring schematics and determine who was right. (Sure the police in Gotham City are incompetent, but there must be competent electricians in the city. Who do you think wires up all those death traps?)

Might Gordon may be guilty of some crime, say negligent homicide? Maybe. But he was charged with manslaughter and I wanted show that I don’t think the prosecution can make its manslaughter case against Gordon.

Still, even if you haven’t been reading Batman Eternal, you know the prosecutors will make their case against Gordon. Batman Eternal is, after all, a fifty-two issue limited series that’s running every week for an entire year. That’s 1,040 pages worth of story. 1,040 is even more pages than I need to fill out my own 1040 every April 15th. DC has to have something that stretches this story out for 1,040 pages. Having Gordon acquitted of all one hundred sixty-two counts of manslaughter would seem to be counter productive to the product.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #333: SHE-HULK’S TRYING THE CASE AND OUR PATIENCE

SheHulk3Let’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.

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