[Themaintainers] Knowledge as Liability : A barrier to maintenance in organizations

[Varun Adibhatla (ARGO)]

Andrew,

Thanks for sharing the NSF proposal re: Strengthening American
Infrastructure <https://www.nsf.gov/pubs/2021/nsf21019/nsf21019.jsp>.
This immediately reminded me of enlightening encounters I had re: getting
NYC to frequently survey its streets to know where all the potholes are and
a large Gas Utility to proactively know the risk of damage to their
infrastructure.
The underlying operational psychology was "*What you don't know won't hurt
you*" i.e. Proactively seeking out to know where their potholes and leaks
were interpreted internally as exposing themselves to litigation.

In NYC's case, it comes from Tort Law where the city has been sued to the
tune of $150 million in property damage from potholes
<https://www.nytimes.com/2015/07/31/nyregion/report-reveals-new-york-city-paid-138-million-in-settlements-related-to-potholes-on-roadways.html>
that they are already aware of.  So there was very little interest to
invest in technology to help them know where all the potholes are.
Similarly in the Gas Utility's case, I was told that, and this took me
aback, they would rather that a house blow up because of a leak that they
did *not* know of than knowing and not acting on it in advance.

The legal doctrine for knowledge = liability is conscious
avoidance or willful blindness
<https://www.forbes.com/sites/insider/2014/10/23/eyes-wide-shut-recent-second-circuit-concurrence-continues-debate-on-conscious-avoidance-doctrine-2/?sh=3ba0217423f2>
and
has been the subject of a lot of legal debate.
A recent lawsuit filed against All American Pipeline for an oil spill
alleges that executives knew of certain risks (coincidentally from a
predictive model) and did not act.
<https://images.law.com/contrib/content/uploads/documents/394/4082/Plains-Spill-Complaint.pdf>
It has also come up in Insider Trading cases where someone receives
information to "not act" on something (relevant in options trading)
<https://books.google.com/books?id=OCCWDwAAQBAJ&ppis=_e&lpg=PA201&ots=du0vbiTUMX&dq=substituting%20willful%20ignorance%20for%20purpose&pg=PA197#v=onepage&q=%22insider%20trading%22&f=false>
If any of you are fans of the show "Succession", the whole cruise ship
scandal <https://youtu.be/IU7yYfT1ihE>is a fabulous recreation of this

A critical step in Maintenance of a system requires that you have advance
knowledge of distresses taking place in that system be it a crack in the
roads, a leak in the pipes, or even a breach of trust (sexual harassment),
or the erosion of the social compact (loneliness and the spread of
misinformation?)

I think this lies at a psychological bedrock for "firms" to not engage in
maintenance. A fear of accumulating risk as they accumulate knowledge of
certain distress.

Does the law offer certain protections from risks emanating from "conscious
and frequent assessments" (the opposite of conscious avoidance)? I would be
really interested if any Corporate Lawyer or Legal Scholar could weigh in
on this.

Varun
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