12 November 2007
Actually, the headline is a misnomer. This wasn’t a deliberate poisoning. Instead, it presents an opportunity for a case study in risk benefit analysis and the sliding scale of moral culpability. It also provides plenty of "food for thought" in terms of discussion about applied business ethics in the cross cultural context of how our own cultural expectations or values influence not only the business decisions we make, but also the decisions that we take it for granted that others will make.
International / Asia Pacific
China Confirms Poison Was on Toy Beads
By KEITH BRADSHER
Published: November 11, 2007
Also, the U.S. Consumer Product Safety Commission said that seven more children had been sickened by the toys.
In western law, there is a sliding scale by which one balances culpability (how morally wrong something is and whether it warrants sanctions). At one extreme, there is something that an ethicist would call simply bad "moral luck." For instance: imagine that a person is driving their car home from work one day. They are driving well within the speed limit, acting safely, watching out, doing everything right. This driver knows that children play in this neighborhood, so he even slows down to watch out for them specially. But in spite of all his precautions, a child runs into the street in front of his car. Try as he might, slamming on the brakes and swerving, the driver is not able to stop. If we draw the picture in such a way that the person whose car hit the child had done everything right and nothing wrong, then it is simply a case of bad moral luck. It is most unfortunate that the accident happened. The person might have nightmares about it; they might feel terrible, they might wish things had been different; but we would not hold them morally at fault.
Draw a slightly different scenario, however, and the conclusion about morality changes.
Imagine almost this same scenario with only a slight modification: A person stops off at the local pub on the way home from work. He drinks two liters of beer. Then, maybe, he uses some other recreational drug. He leaves the pub and stops by to get some of his other friends. His friends have more beer, and they all drink a lot. They begin a discussion about how fast the car will drive, and they decide to test how fast it will go. When they pull into the man’s neighborhood, where everyone knows there are lots of children who play, they are driving 80 miles per hour (say, 160 kmh). So, when this man hits the child, he is traveling 80 miles per hour, with both his reflexes and judgment impaired by alcohol. Is this man morally innocent? Did he do everything he could do to prevent harm to the child? No, of course not. He is guilty of vehicular homicide, or some degree of murder.
These two scenarios are at two different extremes of a sliding scale of culpability. At one end, there is "innocence" (where harm was not forseeable) and at the other end there is "intent" (where harm is so forseeable that it can be presumed to have been intended). In the middle are the two grey areas of negligence and recklessness.
( -) >—————— CULPABILITY SCALE FROM INNOCENT TO GUILTY ————————-> (+ )
(-) Injury not forseeable ————————> probability of harm increases ——————> Injury clearly forseeable (+)
(-) Innocence ——>
Recklessness ———–> Intentional
(-) Bad luck, accident, not responsible –> you should have been more careful, pay for damages –> pay penalty –> criminal liability, go to jail (+)
Negligence is the point in causation and culpability where the person’s actions were in breach of some duty of care and more likely than not caused some harm to the other person. In western law, this results in some culpability and compensation to the victim in the form of civil damages but no criminal liability. We don’t put this person in prison, but we do make them pay for actual damages caused by their actions. A person who momentarily looks away from the road and runs into another car falls into this category. Next, comes the area of "recklessness." Recklessness is the area where the injury and harm is clearly forseeable. We still don’t put people in prison because of this level of breach of duty of care, but we do allow punitive damages. A person who speeds up to get through a light before it turns red may be considered reckless.
One high profile case involving a judgment of "recklessness" was the McDonalds case many years ago where a woman won punitive damages against McDonalds after a cup of hot coffee spilled in her lap. People enjoy making fun of this case, ha ha, the woman who sued McDonalds because she spilled coffee in her lap, and a stupid jury that gave damages all out of proportion to the injury. But they can only laugh about this case if they don’t know so much about it. What maybe is not common knowledge is that McDonalds corporation had received numerous warnings that its coffe was dangerously, scaldingly hot. This was one person among many who had been badly burned, and McDonalds corporation had taken no corrective action to remedy the situation. People who make fun of this case probably also don’t know that the woman was so badly burned that she had to spend a long time in the hospital and then needed reconstructive surgery in her genital area. A jury of 12 people decided that McDonalds knowingly and willingly exposed this woman to an unacceptable risk and that, as a result, she suffered severe injury. A punitive damages award is just that. It is an award that is designed to be punitive in nature, like a fine, to say "we find your behavior unacceptable, and you must change it." For an ordinary person, a smaller amount of money would have been appropriate, but this was a giant corporation. The jury awarded the amount they thought it would take to ensure that the large corporation received a clear message of community disapproval and incentive to change. And change it did.
On the far right end of the scale is criminal intent. A person points a gun at another person and shoots. No doubt what he intended; he’s guilty. But there is also another category where the element of harm is so clearly forseeable that one is presumed to have intended it. In a famous case, someone placed a bomb during a parade, intending to assisinate the king. The king was not injured, but many bystanders were. The person argued he only intended to kill the king, not the bystanders. The Court held him criminally liable because of the clear foreseeability of the harm. The defendant had known the parade route would be crowded with people, he knew the bomb would hurt people, and the consequences so obvious that intent was clear. It didn’t matter that he only wanted to kill the king and didn’t really "intend" to kill John Doe: the intent to kill an innocent bystander was imputed from the circumstances.
This is also the rationale behind vehicular homicide. Everyone knows that a car can become a dangerous weapon when it is driven fast and recklessly. Innocents can be harmed. A person who drinks alcohol, who drives fast and recklessly, is guilty of vehicular homicide if he injures someone as a result of his reckless driving. In law, murder.
How does this legal (and moral) analysis apply to analysis of the deaths of children, reported in this news article? The company did not intend for small children to suck on these beads. Additionally, the company placed warning labels stating that the beads were poisonous. "We didn’t intend for children to get hurt!" they will say. "We warned the parents!" Yet, it is clearly forseeable that the children in the target market would have younger siblings who might place these toys in their mouths. Thus, it is clearly forseeable that these toys would find their way into the mouths of young children who would suck on them.
I doubt if the company that made this decision made such an analysis before deciding whether to substitute this glue in place of the one that had been specified by the buyer. I wish they had.