In that spirit, Consumers Union would like to see a consumer carve-out so that the provisions of this proposal do not affect lawsuits for Y2K failures brought by consumers. Our proposed language for accomplishing this carve-out is attached. If that carve-out language is not part of the bill, the following analysis highlights our concerns. Section 104, Duty to Mitigate. This section turns the traditional tort principle on its head.
Tort law does require a plaintiff to mitigate damages after an injury occurs.
But this section requires plaintiff to mitigate damages before they are injured, even though the defendant has the best information about potential product defects. This provision may allow a defendant to avoid liability simply by showing that plaintiff was or should have been aware of information that would have enabled the plaintiff to avoid the injury. For example, if a defendant posts information to fix a Y2K problem on its website and plaintiff doesn't have access to the internet, that plaintiff could be out of luck because he failed to read about and employ the fix. Nowhere that we know of does tort law require plaintiffs to affirmatively seek out publicly disseminated information or lose their right to bring an action at all. This defense would appear to be available even when the defendant was clearly at fault.