Responsibility, Accountability, and Liability:

1. Responsibility, Accountability, and Liability: Studies in the Theory of Responsibility for Engineering Ethics and Engineering Accountability “A man’s ethical behavior should be based effectively on sympathy, education and social ties; no religious basis is necessary. Man would be in a poor way if he had to be restrained by fear of punishment and hope of reward after death” -- Albert Einstein (1879-1955) “We live as if the world were as it should be, to show what it can be”

2. The Importance of Understanding the Concept of Responsibility • My hypothesis is that technological risks, vulnerabilities and failures often occur because responsibilities are inappropriately assigned. If we can construct some model for the responsibility of actions taken or tasks performed, that, for example may have lead to a technological disaster, we are poised to make better decisions about the ascription of moral responsibility and accountability • This will reduce vulnerabilities and subsequent failures and disasters • To usefully reason about responsibilities in a complex socio-technical system, we must have some way of modeling the responsibility itself (in addition to, and distinct from, the important task of modeling the assignment of responsibilities)

3. The Concept of Responsibility • Four-Fold Definition of Responsibility • Causal Responsibility • Liability-Responsibility • Role-Responsibility • Moral-Responsibility

4. Causal Responsibility • A purely descriptive sense of responsibility • “The heavy rain is responsible for the flooding” • “The operator was responsible for turning off the control switch” • The “But-For” conception of being causally responsible: • X was causally responsible for Y = • But for the occurrence of X, Y would not have happened • For Example: But for the operator turning the switch, the control would not have went off”

5. The Concept of Liability • Liability for one’s actions means that one can rightly be made to pay for the adverse effects of ones actions on others • Automobile liability insurance is intended to cover the costs of damage to other persons or property • We are usually liable for such payments as long as we are causally responsible, even if our actions were unintentional • Liability, does not necessarily involve moral responsibility for the action

6. Strict Liability • It means that no excusing conditions are applicable or accepted • Responsibility without fault • Strict Products Liability • Part of the debate about legal liability concerns where the line should be drawn when assigning strict liability

7. Strict Products Liability • Charges of strict liability in torts (harms) are generally assigned to manufacturers for products that are in “ a defective condition or unreasonably dangerous.” • That liability can be assigned regardless of whether the defendant has been negligent or has been careful (applying accepted standards of care for the product, its design, its manufacture, its assembly and associated warnings). • In order to prove strict liability, the plaintiff need not prove that the defendant's action fell below society's expectation for reasonable behavior. Instead, the plaintiff must prove that the product per se was in a defective condition unreasonably dangerous. It is certainly true that negligent behavior can result in a product in a defective condition unreasonably dangerous. The plaintiff may, of course pursue both theories of liability at the same time

8. Strict Products Liability • In order to apply strict liability for products, courts have required the following: • The 'product' was in a 'defective condition [resulting in a product that is ] unreasonably dangerous'. Defects can be created by manufacture, assembly, design, warning labels, marketing, etc. • The defendant was in the 'stream of commerce' that produces the product and/or delivers the product to the customer (manufacturer, subcontractor, wholesaler, distributor, retailer, etc.). • The product was defective when it left the defendant's hands. • The product was intended to reach the plaintiff without substantial change. • The defect caused in fact) physical harm to the plaintiff. (Strict liability in torts may relieve the plaintiff of responsibility for unforeseeable misuse, abuse, alterations and other defenses

9. Strict Products Liability • The rationale used by courts for imposing strict liability in tort includes three principles: 1) deterrence, 2) loss spreading, and 3) responsibility • Deterrence: courts have stated that strict liability in torts encourage manufacturers (and others in the 'stream of commerce') to make products safer. This increased liability may make products more expensive, but courts argue that the increased price more accurately reflects the true social costs of the products. • Loss spreading: courts have stated that strict liability spreads losses that would be a hardship upon individuals, but the manufacturer (and others in the 'stream of commerce') can offset the increased risk by purchasing insurance. The ethical basis of this principle is utilitarianism • In addition to deterrence and loss spreading, courts have also argued that applying strict liability places responsibility (liability) on the same entities and individuals that control the design, specifications, manufacturing tolerances, material specifications, and condition of the final product as it is delivered to the ultimate customer.

10. Role Responsibility • Role-Responsibility: “Whenever a person occupies a distinctive place or office in a Social organization, to which specific duties are attached…he or she is properly said to be responsible for the performance of these duties, or for doing what is necessary to fulfill them. • Such duties are a person’s (role) responsibilities.”

11. The Concept of Role Responsibility • “Whenever a person occupies a distinctive place or office in a Social organization, to which specific duties are attached…he or she is properly said to be responsible for the performance of these duties, or for doing what is necessary to fulfill them. Such duties are a person’s (role) responsibilities.” • The term "role” includes tasks assigned to people by agreement or otherwise. • The term role-responsibility generally refers to a situation where a certain person occupies a distinct place or office in a social organization, and particular duties are attached to this role in order to provide for the welfare of others or to advance in some specific way the objectives or functions of the concerned organization. • It is necessary to differentiate • “Internal” role responsibility – responsibility for the role one plays as a member of an organization or profession • “External” role responsibility – responsibility for the role one plays in the larger society and culture

12. Role Responsibilities in Professional Engineering • Role responsibilities are often recognized as professional responsibilities, and one of the key issues of engineering ethics is to formulate the relevant sets of responsibilities that can be attached to the roles of the members of the engineering community • What are the duties and obligations that are attached to an individual or group of engineers with respect to their role in a professional organization, corporation, or society? • How best can engineers fulfill their role responsibilities, duties and obligations?

13. Role Mapping • Without a way to effectively connect the various responsibilities that people in organizations have with their roles in the organization, accountability may not be able to be established and this can allow people to avoid responsibility for their decisions and/or their actions • Role Mapping techniques are essential in order to ensure appropriate matching of roles and responsibilities across the organization. • Role Mapping-who does what in terms of roles; what is each person’s commitment/promise of performance and how does it contribute to overall organizational results. • This includes: • Clarify organizational goals and objectives • Identify every employee’s personal accountability for both results and values • Measure performance of both the organization and every employee

14. Role Mapping • Clarifies unexpected complexity, problem areas, redundancy, unnecessary loops, and tasks where simplification and standardization may be possible; • Helps identifies roles and responsibilities, thus supporting more effective allocation of staff resources and more effective stakeholder partnerships

15. Moral Responsibility • To say a person is responsible in this sense is to say that the person is deserving of blame. • This sense of "responsible" seems to imply fault. • That is, when we say people are responsible in this sense we are evaluating their behavior relative to some principle or standard. • Those responsible in this evaluative sense may also be responsible in one of the other senses of the term • an assessment of responsibility in one of the first three senses is often the basis for attributing responsibility in this fourth sense • Moral Responsibility: Accountability for the actions one performs and the consequences they bring about, for which a moral agent could be justly punished or rewarded. It is commonly held to require the agent's freedom to have done otherwise (autonomy).  • Moral responsibility is a normative notion—it involves an evaluation • Connected to other concepts such as duty, obligation, knowledge, freedom, choice, accountability, agency, praise, blame, intention, pride, guilt, shame, conscience, and character

16. Two Types of Moral Responsibility • The assignment of moral responsibility based on the attribution of accountability to a moral agent, where the moral agent acted freely and possessed the capacity for rational choice and the agent has acted voluntarily • Moral Responsibility in the second sense reflects a positive judgment about the manner in which the moral agent has deliberated and the particular way they choose to act

17. Types of Moral Responsibility Attribution • Depending on the kind of responsibility, there are different mechanisms for attributing responsibility • Responsibility can be attributed: • Ex Ante (Before something happens) as in “I take full responsibility that nothing will go wrong” • Ex Post (After something happens) as in “I take full responsibility for everything that went wrong” • Assignment of responsibility is not an all or nothing affair – individuals can be assigned various degrees of responsibility based on a variety of influencing factors

18. Ascriptions of Individual Moral Responsibility • To hold someone morally responsible for their actions or omissions, • At least five conditions need to be met: • That the subject had some role to play in the particular chain of events • That the person was competent to understand their role in the chain of events, and that their competency is relevant to the issue at hand • That the person act voluntarily, and if not, what precluded or diminished their capacity to act voluntarily? • That the person was able to influence the chain of events, and if not, what precluded or diminished their capacity to influence the chain of events? • That the person was aware of the effects of their actions and knew about the results and their own power of influence or lack of power • Related concepts: Rationality, Freedom, Intentionality, Autonomy

19. A Reasonable Care Model of Professional Responsibility • (1) As a member of a profession taking on a specific role in a large organization (corporation, government), E has a duty to conform to the standard operating procedures of his or her profession as well as fulfilling all of the responsibilities which are attached to that particular role within the organization. • At time t, decision or action (X) conforms to the standard of reasonable care and of role responsibility as defined in (1) • E omits to execute decision or action (X) at time t (culpable ignorance may be relevant here) • Harm (H) is caused to some person or group of persons (P) as a result of E’s failure (f) to decide or do X (HP = EfX)

20. Moral Responsibility and Role Responsibility • Questions of accountability are often raised when an individual or group is thought to be responsible for a failed technology. • For example, the breaking of a dam may be the result of such factors as honest mistakes in statics or dynamics analyses; careless, negligent, or even criminal misconduct; incompetence; and the use of substandard materials

21. Moral Responsibility and Free Will • Instances of coercion and constraint may exempt agents from judgments of moral responsibility • Coercion and constraint mean the imposition of some external force that compels or precludes a particular choice or a particular action itself • Consideration of the form and degree of external force imposed can affect the extent to which one considers an action to have been less than voluntary or non-voluntary • Principle: the greater the threat imposed by some external source, the more it eliminates freedom of choice • The more freedom of choice is eliminated, the less voluntary actions become • Some threats reduce the voluntariness of an actions by making any other choice extremely difficulty for an individual to make in the face of the relevant threat • The greater the coercion or constraint, the less likely we will consider the action voluntary and the less moral responsibility we will assign to the agent • One often can be “excused” from being held responsible for an action if the moral agent was coerced or forced to perform the action contrary or against the agent’s free will

22. Comparing Liability and Moral Responsibility Liability Particular: Derives from legislation in force in a certain time and place Limited: Applies only to specific People at specific times or places Divisible: It can be delegated or distributed It can be waived: Sometimes not applicable, implemented or enforced Punishable Moral Responsibility Universal: Ethical principles aspire to universality in that they are not limited to particular people or particular groups or societies Unlimited: It applies to any person in the same situation Indivisible: It cannot be delegated nor distributed It cannot be waived: it always applies Not based on punishment except social shame or guilty conscience

23. Legal Liability vs. Moral Responsibility • The essential characteristics of liability responsibility demonstrate its limitations as a legitimate response in many areas of engineering, technology, and science • Examples: Nuclear Technology, Biotechnology, Nanotechnology, Artificial Intelligence

24. Accountability • Responsibility and blameworthiness are only a part of what is covered when we apply the robust and intuitive notion of accountability • When we say someone is accountable for a harm, we may also mean that he or she is liable to punishment (e.g., must pay a fine, be censured by a professional organization, go to jail), or is liable to compensate a victim (usually by paying damages). • In most actual cases these different strands of responsibility, censure, and compensation converge because those who are to blame for harms are usually those who must “pay” in some way or other for them.

25. 3 Motivations for Accountability • Accountability as a virtue that is desirable in its own right • Accountability as a guideline for answerability which motivates precautionary behavior that, in turn, caters to social welfare • Accountability as a tracing too that allows us, a posteriori, to identify the people involved in accidents and damage-inducing errors, punish the responsible if necessary and compensate the victims if possible

26. theory of causation conceptual foundations of accountability accountability responsibility, fault, guilt individuality, personhood

27. A Typology of Moral Accountability Malice Recklessness Blameworthy Negligence Incompetence Human Actions/Behavior Competence Due Diligence Praiseworthy Dutiful Supererogatory

28. A Typology of Moral Accountability • Malice: to set out on a course of action with the deliberate aim of imposing harm or risks to people • Recklessness: to act knowing that it will cause harm or risk, but not taking this properly into account • Negligence: the failure to exercise in the given circumstances that degree of care for the safety of others which a reasonable person would exercise under the same or similar circumstances • Incompetence: not qualified or suited for a purpose; showing lack of skill or aptitude; "a bungling workman"; "did a clumsy job"; "his fumbling attempt to put up a shelf" • Competence: qualified or suited for a purpose; showing appropriate skill or aptitude • Due Diligence: the exercise in the given circumstances that degree of care for the safety of others which a reasonable person would exercise under the same or similar circumstances • Dutiful: to know what the right thing to do is and to do it regardless of how it effects you • Supererogatory behavior: going above and beyond the call of duty

29. A Typology of Moral Accountability • What is the difference between ignorance and incompetence? • Ignorance is when you do something wrong because you do not know any better • Incompetence is when you do something wrong even though you do or should know better

30. Responsibility vs. Accountability • Responsibility • Implies holding a specific office, duty, or trust • The focus is on what can and should do; an individual’s personal integrity with respect to a specific task • “I-Centered” • One has a clear duty to perform an action and take care to carry it out or bring something to fruition • While being responsible always has other persons in mind, the focus of meaning is upon the individual’s effort, duty, and obligation • Accountability • Implies imminence of retribution for unfulfilled trust or violated obligations • The focus is more upon what others expect from the person who is accountable • “Other-Centered” • Includes judgment and the extent of judgment for the success or failure to do, complete, or protect that for which a person is held accountable • Accountability always assumes a prior responsibility for we always lay out what we expect before we can lay out what the consequences will be for failure to meet the expectations

31. Responsibility vs. Accountability • Responsibility • We call someone responsible when we judge the person’s motives, intentions, and carefulness with respect to the task • We can be responsible without being held accountable to anyone in particular • Responsibility focuses for the most part upon all the elements of duty up to the point of decision • The major difference is the certainty or strength of implied/suggested duty • When responsible one may be asked or take it upon themselves to be morally responsible for the actions they take, for themselves, or others • Accountability • Liable to be called to account; answerable • Refers to how the individual will be judged and thus either rewarded or punished • A person is accountable only when we know they have to answer to being punished • If someone is accountable, it is assumed a responsible party be able to meet the demands of the higher authority to whom they will give their accounting • Accountability focuses for the most part upon all of the elements of duty after the decision is made • When accountable one is duty bound externally or one imposes a much stronger duty upon themselves to answer to any actions which may cause harm or damage to those they are accountable for

32. Responsibility vs. Accountability • Responsibility • Responsibility: "I’ll do it.“ • A sense of obligation, commitment, etc. • Includes exercising one’s judgments with regard to the powers and authority of discretion one has • Accountability • Accountability: "I’ll pay a price if I don’t do it right."  • Required to explain or justify all of the reasons for one’s actions • Accepting personal liability for one’s actions, accepting one’s actions and the consequences • When we know that we must answer with respect to how well we accomplished the task and what reward or punishment was meted out for failing at the task

33. The Social Nature of Responsibility • Moral responsibility is assigned with the understanding that the moral agent who has voluntarily chosen and acted is the product of numerous social institutions (family, community, professional society, etc.) and all the subsequent societal influences that mold and individual into what they will become • The assignment of moral responsibility can be understood as a social practice that serves the crucial function of calling the agent’s attention to her or his effects on the world as well as the individual’s relationships and obligations to other persons in the world • The assignment of responsibility is related to the development of an attitude of care and concern for one’s effects, relationships and duties • The assignment of responsibility and the processes of being held accountable for your (voluntary) actions is part of a ingenious practice of social control by which the community furthers its common ends and interests (Smiley, 1992: 238-254) • Smiley, Marion (1992) Moral Responsibility and the Boundaries of Community Chicago: University of Chicago Press

34. The Social Nature of Responsibility • Moral responsibility is the basis for praise or blame, reward or punishment, fame or infamy • These mechanisms are essential ways in which communities may effect personal change in their members toward behavior that is more in line with collective (social, cultural) ends and values • Example: Judgments of praise and blame, when internalized, create social emotions such as guilt, shame, regret, remorse, pride, etc—in our response to how we interacted with and treated others—that contribute to the development of conscience (Gaylin and Jennings, 1996: 137-49) • Praise and Blame form part of the organization of social adaptation which operates through the assignment of responsibility and of holding people accountable for their actions and attitudes • Moral Responsibility becomes an aspect of our “social practice of blaming” (Smiley: 252)

35. The Social Nature of Responsibility • This works in the pluralistic liberal democracy of the USA by a tacit agreement between members of this large community (country) • It is “agreed” that individuals are free to choose a way of life free of coercion or constraints provided that individuals realize that these free choices are subject to judgment and criticism by others in the community if an individual is judged to have crossed the line • Principle of Liberalism – I am free to do whatever I please as long as in pursuing my ends I do not inhibit another person’s right to do whatever they please • Moral Responsibility in this first sense is mainly an assignment of accountability by the communal “will” (an external judgment) which, in turn, reserves the right to constrain another’s actions so that they are in accord with the values of the community

36. Moral Responsibility as a Virtue • Moral responsibility in the second sense – it is a virtue • Moral responsibility as a virtue requires • the acceptance and internalization of moral accountability (responsibility in the first sense) • with the addition of care and concern for oneself and for other people • The disposition to deliberate, decide, and then take action in ways that one’s respected community can judge to be morally worthy of rightness and praise – Acting in this way one really embodies the virtue of moral responsibility • The Virtue of Moral Responsibility • A cognitive element – the process of rational deliberation about what to do in connection with all the relationships and obligations which arise is a social network • An affective (emotional) element – expressed in the genuine care and concern for how an individual responds to their world, in their thoughts and actions and their effects on others, as well as towards the community as a whole

37. Moral Responsibility as a Virtue • The Virtue of Moral Responsibility • Starts to develop once a person has internalized the acceptance to be held accountable for his or her own free and autonomous choices and actions • One then develops a genuine concern about the consequences of one’s actions and how one’s actions will or will not measure up to the societal norms tacitly agreed upon by the individual when they entered the community they belong to • A person could, for instance, take complete responsibility for their actions but yet not care in what manner their actions impacted other people nor the social relationships and bonds they form with them • Moral Responsibility as a Virtue includes the element of altruism or the genuine care and concern for the well-being of others and a strong commitment to deliberate and make moral choices consistent with the social ethic, acting only on the internalized norms of the moral community in which one lives and partakes (Nussbaum, 19XX; Card, 1996). Claudia Card • Social Responsibility is also considered a Virtue by some researchers (Etzioni, 1993: 11; May 1992)

38. CULPABLE IGNORANCE • Culpable ignorance – when one fails to know something that they should have known • Culpable ignorance – an individual rejects or avoids knowledge they should be aware of. This can result from laziness, incompetence, or intention • Culpable Ignorance can be either direct or indirect • Direct voluntary ignorance is when one decides to not know – it is done deliberately • Indirect voluntary ignorance is when one could/should have known but remained in ignorance – it was done without due diligence • Due diligence – taking care to make sure you learn something that you should know

39. CULPABLE IGNORANCE • Culpableignoranceis a case where ignorance of the facts surrounding a situation does not diminish the responsibility of the moral agentfor unwanted or immoral outcomes of an action. • This is usually because some degree of due diligence or reasonable care has not been taken by the agent in question. • Due diligence means that the agent in question failed to do know something that they could be reasonably expected to know and this led to the performance of the immoral act. • For example, a doctor kills a patient by administering penicillin to a patient that is allergic. The doctor was unaware of the allergy because they had failed to investigate the patient’s history. • Epistemic responsibility • Epistemic conditions on moral responsibility

40. CULPABLE IGNORANCE • Culpable ignorance is a case where ignorance of the facts surrounding a situation does not diminish the responsibility of the moral agent for unwanted or immoral outcomes of an action. • Even though the agent acted in good faith at the time, we say that ‘they should have known better’ or ‘they should have realised what they were doing’ and so they are still blameworthy for the immoral outcomes of their action, even though these outcomes were not intended. • It is culpable ignorance because it could be cleared up if the person used sufficient diligence. • You were capable of knowing something, and you should have taken pains to come to know it. • One is said to be culpably ignorant if one fails to make enough effort to learn what should be known; guilt then depends on one's lack of effort to clear up the ignorance

41. Culpable Ignorance • What is the difference between culpable and non-culpable ignorance? • The criterion for determining culpable ignorance, is if harm is likely to result and the agent could have found out about the likely circumstances of the action • We should be expected to know in general what kinds of effects will result from familiar types of actions, even if we can’t predict the exact details • For example, there is an historical record of human-made disasters, and the causes of them can be determined and understood by identifying general categories of belief and action, as well as design and technical breakdown of engineered systems • The SHOT model is an example of this

42. Culpable Ignorance • Some things are unpredictable in detail, but are familiar enough that one would be culpable not to expect them if they fit into our categorical scheme – SHOT • Those who perform actions that have potentially disastrous consequences can be morally culpable even if they cannot foresee the specific consequences • They are culpable because experience has shown that one should expect certain kinds of events • In general, we have an ethical duty to find out what the likely effects of our actions are

43. Culpable Ignorance • In considering culpable ignorance, typically one is concerned with ignorance of fact. • But there is also another type of culpable ignorance called ignorance of moral principle. One can fail to know what one ought to do in a particular case. • One can fail to know some general moral rule. • One can fail to know that people have certain rights; or that one has certain responsibilities • An omission may be culpable on account of some special position of role or other responsibility held by the agent

44. Moral Accountability and “Excusing Conditions” When someone is the “cause” of some wrongdoing, they are not automatically considered responsible and hence accountable. The law and ethics recognizes certain, valid “excusing conditions” Ignorance Excuse • Is it possible to know? • Could we, or should we have known? • Would a reasonable person considered the possibility? • If not: excusable ignorance • If impossible for us to know: invincible ignorance Lack of Freedom Excuse • Four conditions: • No alternatives: not even lack of action • Lack of control: • External coercion: force • Internal coercion: Illness, passion, uncontrollable psychological compulsion, etc.

45. Theory of Negligence • Negligence has come to define the expected standard of conduct replacing, for some people, ideas of honor, propriety, and simple right and wrong • No case of actionable negligence will arise unless the duty to be careful exists • A person is considered negligent or careless if they do not exercise the kind of due care that is appropriate to the particular situation in question • Negligent omission: failing to act when the person has a duty to act

46. Negligence • The law of negligence imposes a duty to think before you act. • The ordinary care standard imposes a social standard which is judged by members of the community who may or may not agree with your evaluation of your own conduct. • Therefore, it is important to look at your acts and omissions from the stand point of others in the community who will be judging your conduct. • If you have negligence concerns, ask: • 1. What would members of the community require me to do under these circumstances; • 2. What would members of the community forbid me to do under these circumstances; • 3. What would members of my profession/vocation/calling require of me under these circumstances; • 4. What would members of my profession/vocation/calling counsel me to avoid under these circumstances; • 5. What are the risks of my conduct, considering the probability of harm and the degree of injury or damage that would result if an accident occurred; and • 6. Would ordinary people in the community believe that I am taking reasonable risks?

47. Proving Negligence • Negligence is 'conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm' [4]. • In order to establish liability for damage, the courts analyze the following four elements: • duty • breach • proximate cause • damages.

48. Proving Negligence Negligence: the injured party (plaintiff) must prove: • a) that the party alleged to be negligent had a duty to the injured party-specifically to the one injured or to the general public, • b) that the defendant's action (or failure to act) was negligent-not what a reasonably prudent person would have done because it did not fulfill the “standard of care” typical of how any similar engineer would judge and act in similar situations • c) that the damages were caused ("proximately caused") by the negligence. • d) That the damages were "reasonably foreseeable" at the time of the alleged negligence.

49. Standard of Care • In legal cases, a judge or jury, has to determine what the standard of care is and whether an engineer has failed to achieve that level of performance. • They do so by hearing expert testimony. • People who are qualified as experts express opinions as to the standard of care and as to the defendant engineer's performance relative to that standard. • The testimony from all sides is weighted and then a decision is made what the standard of care was and whether the defendant met it

50. Standard of Care • Jury instructions have been standardized. A Bench Approved Jury Instruction (BAJI, 1986) reads: • "In performing professional services for a client, a (structural engineer) has the duty to have that degree of learning and skill ordinarily possessed by reputable (structural engineers), practicing in the same or similar locality and under similar circumstances. • It is (the structural engineer's) further duty to use the care and skill ordinarily used in like cases by reputable members of the (structural engineering) profession practicing in the same or similar locality under similar circumstances, and to use reasonable diligence and (the structural engineer's) best judgment in the exercise of professional skill and in the application of learning, in an effort to accomplish the purpose for which (the structural engineer) was employed. • A failure to fulfill any such duty is negligence"