Limits of any kind on Y2K lawsuits are problematic because they prevent our legal system from doing what it is designed to do: Forcing the party responsible for an injury to pay the resulting damages. In the Y2K context, this means forcing the company that created or overlooked the problem to pay for the damages, rather than the innocent consumer of computer products. Limits on Y2K lawsuits will only hurt the little guy, and only help big business.

For example, imagine that you are like the small business owner described in the recent Daily Record article on Y2K lawsuits (March 3, front page). You have saved for years. You have carefully planned your business in every detail. You've worked long hours to make your dream a reality. Then, on your opening day, you discover that your high tech Acme Computerized Cash Register system has a Y2K bug. You are prevented from accepting any form of payment from your customers because the cash register thinks that it's the year 1900. You can't collect any money, so you can't pay your vendors. They won't sell to you. Your employees quit because they aren't being paid. The bank commences foreclosure against your property and seeks an order to conduct a sheriff's sale. You file bankruptcy.

Understandably, you sue Acme. Under the bill being considered by Congress, however, the most you would recover from Acme would be a new cash register. Senator John McCain's bill provides that if a company like Acme has made "good faith efforts" to remedy its Y2K glitches, you won't be able to recover any of the money you've lost. You won' t recover any punitive damages, either.

Change this scenario to make Acme a government agency, and you won't even make it to the court house steps, under two separate bills proposed by New Jersey State Assemblyman Michael Arnone and State Senator Leonard Connors. Both of these bills grant complete immunity to public entities with Y2K problems.

Perhaps the proponents of these bills are listening to the Y2K alarmists, who think that Y2K is going to be an earth-shattering catastrophe. Perhaps they have listened to the insurance industry's propaganda about the "litigation explosion". Whatever their motivations, they are expressing a lack of confidence in the general public's ability to dispose of bogus claims through the jury system. They are essentially saying, "Yeah, you've been hurt, but this problem is too big to allow a jury to make things right". These congressmen are underestimating the intelligence and fairness with which most juries rule. In the vast majority of cases, the system does a pretty good job at rewarding only those who deserve rewarding. If a case lacks merit, the jury will almost always send the plaintiff home with nothing.

Furthermore, the proposed bills remove a major incentive for companies to address their Y2K problems. If Acme knows they must make only minimal "good faith efforts" to fix their Y2K bugs in order to receive sweeping protection, then Acme won't care very much about really trying to fix the problem. Good faith efforts could be as minimal as making an economic determination that it's not cost effective to fix the problem. If Acme faces full liability for the damage they cause, you can bet that they will put their best efforts into fixing the problem.

The reason that so many products are safer now than they were years ago is that the jury system has held companies which make unsafe products liable to the people who are hurt using the products. The system works; it throws out cases where the consumer misused the product, or where the accident could not be anticipated or avoided through careful design. In general, only a truly blameworthy product manufacturer will lose a jury case.

The same principle applies to Y2K cases. Let the jury system decide whether a company is responsible for Y2K damages. The legislators should stay away from this issue.

By Robert F. Hoyt, Esq.