Last week, I started a blog series inspired by the new Marvel show She-Hulk: Attorney at Law (check out that blog here). The series will explore what a personal injury case might look like if it involved the super-powered beings and events from Marvel’s cinematic universe. Specifically, I will be exploring the imaginary potential case of a Joe Schmoe hurt in the final battle between the Hulk and the Abomination in 2008’s The Incredible Hulk. I changed the location to Kansas City, Missouri, because that’s where I am licensed.
So what claims for compensation does our Joe Schmoe have? And against who?
The most obvious claim to me would be against Emil Blonsky. I think there would be several claims. We could plead battery. For that, we would have to prove Mr. Blonsky intentionally struck Mr. Schmoe, thereby causing him bodily harm. See MAI 23.02 [1990 Revision]. We may struggle to show intent here. Did Blonsky intend on striking Mr. Schmoe with the car? A strong argument can be made that he did not. Rather, his intent was to simply move the car out of the way to get to the Hulk.
A stronger claim would be general negligence. For that, we would have to prove that Mr. Blonsky had a duty to protect Mr. Schmoe from injury, Mr. Blonsky failed to perform that duty, and his failure proximately caused injury to Mr. Schmoe. Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 710 (Mo. banc 1990). The trouble with a negligence claim would be establishing duty. What duty did Blonsky owe Schmoe when he charged the Hulk? Not to throw cars out of the way? Possibly. I think a stronger claim would be not injecting himself with Banner’s blood in the first place. That seems to be the original cause of all the carnage. More importantly, though, I think everyone would agree we should not inject other superhumans’ blood or anything that we don’t know what it will do to us for that matter.
There is another, more off-the-wall claim that could be made. It stems from a 1939 statute called “Liability for damages caused by riotous assemblage.” It states, “Any person or persons forming a part of an unlawful or riotous assemblage shall be liable for any damage to person or property caused by the acts of such assemblage, or of any person or persons unlawfully connected therewith.” Were Hulk and the Abomination’s rampage part of a “riotous assemblage”? Seems like the case could be made here.