As already established, I love Joss Whedon. While Buffy will always be my first love, I think everything he does is great, each in its own special way. Dr. Horrible’s Sing-Along Blog is fantastic for so many reasons, including: (1) its inspiration in the 2007-08 Writers Guild Strike; (2) its music; (3) its use of Neil Patrick Harris; and (4) Joss’s classic move of turning convetion on its head, in this case, by making the hero an insufferable stuffed shirt. (Nathan Fillion is great as Captain Hammer but he’ll always be Johnny from Two Guys, a Girl, and a Pizza Place to me, while Ryan Reynolds will always be Berg.)

In addition to a reputation for excellence, Joss also has a well-deserved rep for killing off beloved characters. In Dr. Horrible, of course, [SPOILER ALERT!] he killed the adorable, sweet, much loved Penny. And while he killed her by impalement (a possible MO, per Josh, my partner in geekdom), it was as a result of the misfire of the Death Ray created by Dr. Horrible, although it was Captain Hammer who pulled the trigger. Nevertheless, Dr. Horrible got the credit, in the eyes of the Evil League of Evil, for murdering Penny. The question for The Legal Geeks, however, is what would the courts say about Dr. Horrible’s liability for Penny’s death?

In this situation, Dr. Horrible’s role would be similar to that of a gun manufacturer. He created the Death Ray but he didn’t pull the trigger. Indeed, he didn’t want Captain Hammer to pull the trigger, probably because the Death Ray was pointed directly at him at the time. (Captain Hammer’s willingness to fire on a clearly-vanquished enemy can be compared to Captain Mal Reynold’s shooting of unarmed opponents. This unusual willingness to have heroes act in morally grey ways is another Joss trademark, and one Josh and I discussed in comparison to George Lucas’s redo of Han Solo’s cantina gun shot.)

Dr. Horrible could argue that, as a gun manufacturer, he’s covered under the Protection of Lawful Commerce in Arms Act (the “PLCAA”), enacted by Congress in 2005. This Act was passed in part to prevent lawsuits against manufactures of firearms “for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed or intended.” This statute, which exempts manufacturers of legal, nondefective firearms from liability in products liability actions for criminal use of the firearms, would presumably not apply here for two reasons. First, while semiautomatic assault weapons may be legal, a “death ray” is probably not a legal firearm. Second, the death ray was presumably defective, as it misfired dramatically after a mere drop to the floor (Dr. Horrible wasn’t the best at making these weapons – the Freeze Ray didn’t work consistently either).

Assuming the PLCAA doesn’t protect him from liability, the question is whether Dr. Horrible can be held liable for the product he created. Dr. Horrible lives in California, where the general rule is that a manufacturer can be held liable for dangerous products, although there is no duty to warn of a product’s known risks or obvious dangers. With regard to the Death Ray, the dangers of firing it are obvious, although death by impalement would not be an obvious danger, so Dr. Horrible couldn’t use that general rule to protect him from a suit by Penny’s family.

A key question for the jury in a case brought against Dr. Horrible by Penny’s family would be whether the Death Ray failed to perform as safely as an ordinary consumer would expect when the product is used in an intended or reasonably foreseeable manner. Firing the weapon at a bad guy (by a hero, no less) is arguably a reasonably foreseeable use of the death ray. That same gun exploding into deadly shrapenel, however, would not be an example of a gun performing as safely as an ordinary consumer would expect, thereby making Dr. Horrible liable.

If a negligence claim was brought in addition to a products liability test, the issues would be the same, although Penny’s family would also have to prove that the defect in the death ray was caused by Dr. Horrible’s negligence. Again, a death ray that explodes after being dropped once is a poorly designed death ray and Penny’s family would have a strong argument that Dr. Horrible was negligent in designing the death ray.

Of course, this entire discussion may be moot because, as a result of Penny’s death, Dr. Horrible became a powerful evil leader. Captain Hammer, meanwhile, was reduced to many hours in intensive therapy and was unable to stop Dr. Horrible. So the courts may not have the capability to impose a judgment against Dr. Horrible — making him truly judgment-proof.

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