One instance of corporate criminal liability is established by the Model Penal Code § 2.07 as occurring when a corporation “[omits] to discharge a specific duty or affirmative performance imposed on corporations by law.” Based on the tripartite test established in United States v. Agosto-Vega, corporate criminal liability requires the offense to (a) have been committed by an employee, officer, or agent; (b) be within the scope of employment; and (c) at least partly for the corporation’s benefit. Points (b) and (c) are unestablished for Vic; it is not known whether he acted within the scope of his employment, and partly to benefit the corporation, in his contribution to unsanitary conditions. Therefore, it cannot be concluded that Tasty Foods faces corporate criminal liability for the unsanitary conditions.Sophie cannot be held personally liable, because she fails to satisfy any of the three conditions of the Agosto-Vega test. Most importantly, Sophie did not commit the actual offense (or the secondary offense of having covered up Vic’s actions). Because Sophie did not know about Vic’s actions, she cannot be held, under the letter of 18 United States Code 3,4 to have committed misprision or to have been an accessory after the fact. 18 U.S.C. 3,4 has been applied, in United States v. White Eagle and other cases, to require (a) knowledge of the third party’s felony, (b) failure to notify the authorities, and (c) taking some affirmative steps to complete the crime.
Based on both the black-letter law and its application in case law, Sophie cannot be held criminally liable. Additionally, unless it can be established that Vic committed his felony within the scope of his employment and at least partly to benefit the company, Tasty Foods Corporation cannot be considered criminally liable either.
Product misuse that is foreseeable is different from product misuse that is not foreseeable. In this scenario, assuming that the misuse of the product is foreseeable, further analysis is necessary to understand whether consumers can avail themselves of the foreseeability defense discussed in Restatement (Third) of Torts: Product Liability §§2(b), 2(c). This analysis has both ethical and legal overtones.
Restatement (Third) of Torts: Product Liability §2(b) states that a productive “is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design…” In the case of a knife, for example, cutting is a foreseeable harm, but it is not a product defect in itself, because there is no alternative way to design a knife capable of cutting objects but not hurting people. Recreation and Sports Equipment Corporation needs to examine its product in a more serious fashion and answer the question of whether there is an alternative design that could viably reduce foreseeable harm. If there is no such design, then there is neither an ethical nor a legal duty for the company to take its product off the market. If there is some alternative design, then the company ought to consider taking the current product off the market, because doing so would reduce the risk of liability lawsuits as well as address the underlying ethical concerns of keeping a potentially dangerous product on the market. In this scenario, the ethical and legal questions cannot be separated. Businesses have an ethical obligation to their own stakeholders as well as to the market in general. The mere existence of foreseeable harm does not constitute an imperative to take the product off the market. However, if the foreseeable harm can be reduced, then the legal and ethical pressures to remove the product are greater.
- Model Penal Code.
- United States v. Agosto-Vega
- United States v. White Eagle