Software Development and Product Liability – A Perspective

One might imagine that computer software, with its ephemeral nature and immediate associations with games like Angry Birds™ could rarely be conceived to fall into the realm of a serious products liability case. However, computers and software have evolved to become essential components in the successful operation of critical customer-facing operations, from systems that have a personal impact such as medical x-ray imaging to systems like those that manage a nuclear power plant and have the potential for massive impact.

In 1987, a product liability case, on appeal, involved a large-scale computer system for law enforcement had a very personal effect on a citizen of Washington, D.C. (Akins v. District of Columbia, 1987). The citizen, Mark Akins was seriously wounded during an armed robbery committed by Clifford Henry Williams, who had been released on bond after two previous releases for armed robberies. Williams’s third release was based on information provided by the District of Columbia Pretrial Service Agency (PSA), which had failed to report the two previous armed robberies because the agency’s computer, installed and maintained by International Business Machines Corporation (IBM) did not operate properly. Akins sued the District of Columbia, the agency and its employees, and IBM. The filing was sweeping in the number of claims made against each party, but as to the product liability claims specifically, the plaintiff alleged negligence on these facts:

 

  1. the PSA computer, installed and maintained by IBM, failed to operate on two

important occasions

  1. each time, the PSA discovered that their computer was not working, and they could not

obtain a full record of Williams’ arrest and conviction record

  1. rather than searching for the information by hand, both times the PSA informed the

arraignment court that the computer did not work and they could not provide all of the

requested information; therefore

  1. the arraignment judge released Williams, once on his own recognizance and then on a

$3000 bond, because he was unaware of the full scope of Williams’ previous record

(Akins v. District of Columbia, 1987)

 

Facts regarding why the computer failed to operate were never detailed, primarily because the suit was dismissed by the trial judge on the grounds of public duty doctrine; namely, the district and its employees could not be liable for failing to protect individuals from harm caused by criminal conduct.

 

Elements of Products Liability Case & Analysis of Issues

 

The claims of negligence based on product liability were clear: the plaintiff alleged that IBM’s negligence arose from proximate cause for the plaintiff’s injury. The court documents stated: “For this court to conclude that IBM might be held liable to appellant for its assumptively negligent maintenance of the PSA computers, we would have to conclude that IBM’s negligence could be characterized as a legal proximate cause of the injury to appellant.” (Akins v. District of Columbia, 1987).

However, the case was dismissed; the court ruled that while there was possible proximate cause and possible anticipation of the crime, because of the higher legal standard applied to cases involving official agencies, there was insufficient evidence that IBM could have had knowledge or anticipate a forseeable criminal assault as a result of a flaw in their software:

 

“…when combined with the intervening inaction of the PSA, and the discretionary decision of the arraignment judge, there is no way to interpret appellant’s allegations as showing that appellee IBM had actual knowledge of, or good reason to anticipate, Williams’ assault.”  (Akins v. District of Columbia, 1987).

 

Products liability claims can be based on negligence, strict liability, or breach of warranty, and there is no federal products liability law (Cornell, 2014). As in the situation with Akins, providers of computer hardware or software may be liable for negligence if the plaintiff can prove: the existence of a duty by the defendant to conform to a specific standard of care; breach of that duty; the breach was the actual and proximate cause of the alleged injury, and there was provable damage (i.e., damage to person or property). In the District of Columbia, where the case was heard, D.C. case law prohibits suits against the district a and its employees where the alleged breach of care involves a duty to the general public to ensure its safety. (Akins v. District of Columbia, 1987). And as stated earlier, it was this intervening consideration, namely that the PSA and its employees used the systems provided by IBM, that compelled the judge to rule that IBM subsequently carried no liability either, even though he stated: “Standing alone, Williams’ criminal assault of appellant might possibly be considered a remotely foreseeable result of computer failure….” (Akins v. District of Columbia, 1987).

 

Discussion of Holding and Decision of the Court

While at the heart of the case, this may have been a valid software product liability claim on the part of the plaintiff, a critical consideration in this case was the software operator, and it may be that this fact which represents the primary ethical dilemma in any case involving liability with software systems. Namely, hardware is a physical object that can create direct physical harm under certain conditions, for example when a power supply burns a user (Stevens, 2012): there is a clear existence of a duty by the hardware vendor to conform to a specific standard of care in the design and manufacture of consumer electronics; there was a breach of that duty as demonstrated by the power supply malfunciton; the breach was the actual and proximate cause of the alleged injury to the plaintiff’s skin; and there was provable damage wherein the plaintiff suffered severe burns that required medical treatment. There is a direct link between the product and its user. That direct link does not necessarily exist with software to result in proximate damage or injury due to the software’s use by an intervening operator, as in the Akins case. With Akins, IBM was both the software system manufacturer and installer, and ethically as the judge suggested in his ruling, IBM should have shouldered some liability were in not for the laws of the District of Columbia and public employees who were the users/mis-users of the system. Were Akins the resident of any state in the U.S., those courts could likely have ruled in Akins favor.

What this means for society and software corporations is that there is case law precedent that suggests some mitigating factors exist which allow software corporations to disclaim culpability in the case of proximate and ultimate causation for those who are harmed when a given, direct user of the software does not apply proper judgment in the software’s use. The critical, unclear questions for future litigants is whether the mitigating circumstances of public employees in the District of Columbia have any bearing on a court’s future considerations if public employees are not the end-users and if the case is heard in other districts or states.

 

Recommendation for Defendant and Similar Corporations

 

Few software product liability cases have been litigated, so there is little judicial guidance provided in terms of steps a software vendor to mitigate liability. (Levy, 1990) If Akins case provides any guidance, one clear line of reasoning a corporation could take would be to ensure that its End User License Agreements include clauses that clearly indemnify them from the misuse of their software by an end-user. These clauses might include specific language around the “installation” of the software on the user’s computer being the critical transfer of risk and assumption of any resulting liabilities for design, manufacturer or some negligence, from the manufacturer to the user. By providing clear legal language and a contract with the end-user, the corporation may be able to successfully insulate itself from claims resulting from proximate or ultimate harm or damage to individuals who were not direct users of the software, but were harmed or damaged by the users of the software.

 

References

 

Akins v. District of Columbia, 526 A. 2d 933 – D.C.: Court of Appeals, 1987. Retrieved from http://scholar.google.com/scholar_case?case=5927854538970536502&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[3]

 

Cornell University Law School. (2014). Products Liability Law: An Overview. Retrieved from http://www.law.cornell.edu/wex/products_liability

 

Levy B. & Bell, S. (1990). Software Products Liability: Understanding and Minimizing the Risks. Retrieved from http://www.law.berkeley.edu/journals/btlj/articles/vol5/Levy/html/text.html

 

Stevens V. (2012). Products Liability: Stevens Settles against Dell Inc. Retrieved from http://www.millerlawoffice.com/news-from-miller-stevens/stevens-settles-products-liability-case-against-dell-computer-nov-2012

 

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