Dodging Missiles, Attracting Liability?

This month’s column was inspired by a question from Promethee, who writes:

I’m watching Ironman 2 (I know, I’m late) but something that seems to happen quite a lot (and come to think of it happens in like every other superhero movie) is the scene where the hero is being chased by some sort of tracking missiles. At that point, the hero flies at some sort of building and when really close, takes a tight turn. The missiles can’t turn that tightly, so they fly into the building destroying it and killing a bunch of people. Of course, whoever fired the missiles has plenty of liability coming at them. But what about the hero who performs the maneuver?

This same maneuver is also heavily employed by Iron Man in The Avengers, and that’s where I’ll take my examples from (mild spoilers for that movie ahead).  Iron Man certainly has a right to self-defense, but what are the limits of risky self-defense tactics?  There are two aspects to this question: civil and criminal liability.

I. Civil Liability

Although this tactic is not the typical self-defense method (e.g. shooting the attacker), I think self-defense is the closest analogy.  The Restatement (Second) of Torts § 75 has this to say about harming third parties in the course of self-defense:

An act which is privileged for the purpose of protecting the actor from a harmful or offensive contact or other invasion of his interests of personality subjects the actor to liability to a third person for any harm unintentionally done to him only if the actor realizes or should realize that his act creates an unreasonable risk of causing such harm.

In other words, Iron Man may be liable for any harm to people inside the buildings if his actions created an unreasonable risk of harm (i.e. he was acting negligently).  So is avoiding a missile by guiding it into a potentially occupied building a reasonable means of self-defense?  As the comments to the Restatement explain, “the exigency in which the actor is placed” is an important factor in deciding what is reasonable in making the “almost instantaneous choice of a means of self-defense.”  In a crowded city under siege by aliens (as in The Avengers), there might not be a lot of other options.

Other important factors are ”the comparison between the value of the respective interests of the actor and the third person, and the amount of harm likely to result to each if the actor adopts or refrains from adopting the particular means of self-defense which he employs.”  In the case of The Avengers, Iron Man is trying to save Manhattan (and indeed the entire Earth) from destruction.  If he refrained from using the best self-defense technique available, he might have been killed or otherwise prevented from saving the planet, in which case the people in Manhattan would probably be dead either way.  Iron Man isn’t more valuable than the bystanders, but taking the risk that he did was probably reasonable under the circumstances.

II. Criminal Liability

As we discussed in one of our posts on The Avengers, the criminal law standard for bystander injury during self-defense is similar, but not identical.  A person acting in self-defense (or defense of others) who accidentally injures or kills a third party is ordinarily not liable.  However, if the person acts recklessly then he or she would be liable.

Of course, the situation may be such that A ought not to shoot at B in self-defense, etc., because of the presence of bystanders like C whom A might hit instead. If there is a high degree of risk to people like C involved in A’s shooting at B, A’s killing of C will amount to manslaughter, Henwood v. People, 54 Colo. 188, 129 P. 1010 (1913); Annot., 18 A.L.R. 917, 928 (1922); if a substantial certainty, to murder.

Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.12, at 402 n. 53 (1986); see also Reyes v. State, 783 So.2d 1129 (Fla. App. 2001).  In the criminal law context there does not seem to be a reasonableness standard, which is fundamentally a balancing test.  Instead, the question is simply whether there was a high risk to the bystanders.  In The Avengers, given the crowded city environment, the power of the missiles involved, and Iron Man’s limited ability to control where the missiles would impact and virtual inability to warn the bystanders, the risk of injury or death seems very high.  So do we have the curious result of Iron Man being criminally liable but not civilly liable?

Probably not.  The answer is the defense of justification, which is what New York calls necessity.  Often described as a “lesser of two evils” defense, justification is rarely available as a defense in the real world, but it almost certainly applies here.  Justification brings a balancing element back into the picture, and would allow Iron Man to argue that taking the risk that he did was the lesser of two evils when compared to letting the Chitauri take over the world.

III. Conclusion

Although they take slightly different routes to get there, both the civil and criminal law would probably excuse Iron Man in this case.  Other situations might be different, though.  For example, if Iron Man could stop the missiles with an anti-missile defense rather than by running them into a building then he would be expected to use that first.  Or another superhero (e.g. Superman) who could simply take the hit would be expected to do that rather than unnecessarily risk injury to bystanders.  But in many (I hesitate to say most) fictional cases, the maneuver is probably a legally acceptable means of self-defense.