The strict liabiliy vs. negligence debate.
Strict product liability, the imposition of liability on the producer of the product regardless of the care taken by the producer, has important advantages over the creation of a negligence rule:
- It removes the necessity of the cosumer to prove that the producer was acting negligent. "The policy of strict liability evolved because it is often not feasible for a consumer to prove negligence. If the product is very complex, it may be impossible or extremely difficult for a comsuemr who knows little about the workings of the product to identify the source of the negligence which was responsible for the defect. Under strict liability principles, the consumer must only porve that the product was defective and, as a result, unreasonably dangerous" (L. Nancy Birnbaum in "Strict Liability and Computer Software, 8 Computer Law Journal 142- 1988).
- It is much easier to adjucate claims brought under a strict liability rule. Expensive lawyer fees used to prove a level of negligence could be forgone.
- The manufacturer has an informational advantage concerning his product. As Birnbaum states, "Since the manufacturer is in the best position to discover and prevent defects, the manufacturer should be encouraged to do so" (143).
Creating a negligence standard
Under strict liability, all the plaintiff need show is that the product failed. Under a negligence standard, the plaintiff must show that the company did not meet its duty of care to the consumer in creating the software, and that the companies actions were the proximate cause of the failure (no intervening factors outside of the control of the computer created the failure, such as a hardware failure).
The standard of contributory negligence takes into account the actions of the user. If the user was using the software recklessly, then the producer could escape liability, regardless of whether the producer was negligent.
Furthermore, using a negligence standard would allow computer companies to experiment and innovate without the imminent threat of a lawsuit.