In this installment of my superhero personal injury law blog, I’ll delve into some of the problems with Joe Schmoe’s personal injury case against Emil Blonsky. In the last blog, I wrote about some of the possible causes of action stemming from Mr. Blonsky shoving a car into Mr. Schmoe as he raced to attack the Hulk. Although there are several solid claims, there are a few solid defenses and one likely deal-breaker.
I would imagine Mr. Blonksy would claim he was not in control of his actions when in Abomination form, and as such, he should not be liable for any injuries the Abomination causes. Because there is no real-world equivalent to the Abomination, I think the closest thing we have to such a defense in Missouri legal jurisprudence is the driver blackout defense. Fainting or a momentary loss of consciousness while driving is a complete defense to actions based on negligence if the loss of consciousness was unforeseeable. Ferkel v. Bi-State Transit Development Agency, 682 S.W.2d 91, 93 (Mo. App. 1984).
There are several problems with defense, mainly that changing into Abomination form does not leave Mr. Blonksy momentarily unconscious. Blonsky seems to have a degree to control or at least consciousness when transformed into the Abomination. Another problem is that even if Blonsky is unconscious while transformed, it was not unforeseeable. He chose to turn into the Abomination to try and kill the Hulk.
Another problem with Mr. Schmoe’s case against Blonsky is jurisdiction. In our imagined setting, our potential client Joe Schmoe is a citizen of Missouri. Blonksy is a foreign national living in the United States. Any lawsuit against him would have to be filed in Federal Court in order for the Court to exercise jurisdiction over Mr. Blonksy and enforce its judgment. Federal Court is much more challenging for personal injury plaintiffs than Missouri State Court, and the case would likely take a hit on value because of it.
The biggest problem with any personal injury case against Mr. Blonksy is collectability. With injuries as significant as our potential clients, any judgment will likely be in the hundreds or thousands, if not millions, of dollars. If the defendant does not have the ability to pay, however, the judgment will only be as valuable as the paper it's printed on. It was revealed in episode 4 of She-Hulk: Attorney-At-Law, that Mr. Blonksy has no personal assets. As such, any judgment Mr. Schmoe would get against him would be useless because he could never collect. Mr. Blonsky’s lack of assets may doom Mr. Schmoe’s case from the outset. However, some creative lawyering may yield claims that could be covered.
Next week, I’ll expand the search for valid, compensating claims for our injured innocent bystander.