What do you think about liability issues regarding whether programmers, software developers, testers, managers, and/or CEO’s should be held liable if their software product (or a derivative) causes death (plane crash, etc.)?
The concept of liability must necessarily be discussed along with the liability that attaches to software developers and the software designers. Essentially, employees cannot be made liable for the acts that they commit in their ordinary work for the corporation. The concept of a corporation must essentially be discussed. A corporation itself enjoys a personality that is separate and distinct from that of the members of the corporation and that of the employees.
Only in cases where the separate corporate existence of the business has been used to perpetrate fraud or been totally disregarded is that corporate legal fiction pierced and these separate individuals are made liable for the acts of the company. Making software firms liable in case of software related accidents should be the norm. The accountability of the programmer and upper management should be contingent only upon their degree of involvement and whether or not the exercised their functions properly.
Corporations, regardless of what business they engage in, have a limited liability. Likewise, programmers, developers, managers and CEOs, are not necessarily liable for any problems that their products may cause as long as they can show that they exercised all their functions properly and did not increase the risk due to their conscious acts. Whenever a company causes accidents due to malfunctioning software that they develop, one of the elements of due process which the law provides to protect all entities including juridical entities such as corporations and accounting firms must always be remembered. The liability here arises from the automatic presumption that the employees involved in the development of such software are fully responsible for all the consequences of such. This is a presumption that cannot hold outright and it has been consistently ruled by the Supreme Court that fraud is a serious allegation that must be proven and cannot be assumed.
Another important concept that must be addressed is that of tort. The basic rule in Tort Law is that a person who by act or omission causes damage to another is liable to the offended for damages. The principle involved in negligence actions alleging injury from toxic substances is similar to this. Under the principle of Res Ipsa Loqitur, which literally means the thing speaks for itself, the presumption of the negligence of the plaintiff arises when it has been shown that injury has been caused by the faulty software. There is no burden on the part of the injured party to show that it was the negligence of the plaintiff that caused the injury since such is already presumed by the occurrence of the injury. This makes it more difficult for plaintiffs because the only defense in these cases is by showing that there was no negligence and that the incident causing the injury was one that was caused by force majeur or unforeseen and inevitable circumstances. The difficulty here arises in overcoming the legal presumption of negligence on the part of the plaintiff.
As applied to this situation, a liability on the part of the employees of the software corporation can only arise in the following circumstances: If the programmer was negligent in the design of the software, if the developer employed any fraudulent methods in the design phase, if the marketers and testers were guilty of altering or misrepresenting the capabilities of the software and finally if despite all of these things occurring, the CEO approved the release of the software with full knowledge of the software being faulty. As can be seen from the following, only in the case of personal involvement and malicious intent can these employees be held liable for the software failure leading to an accident. The real and primary liable devolves upon the software company as a singular and distinct personality.