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Laney v. Fairview City8/9/2002
were not entitled to immunity. Therefore, we find that the 1987 amendment partially abrogated a remedy for a municipality's negligence. Because a remedy has been abrogated, we proceed with the Berry test to determine the constitutionality of the amendment under the open courts provision.
2. No Reasonable Alternative Remedy
Under the first prong of the Berry analysis, when a remedy has been abrogated, this court first determines whether the legislature has provided a "reasonable alternative remedy 'by due course of law' for vindication of [a plaintiff's] constitutional interest." Berry, 717 P.2d at 680. In Berry, we held that the substitute benefit "must be substantially equal in value or other benefit to the remedy abrogated in providing essentially comparable substantive protection to one's person, property, or reputation, although the form of the substitute remedy may be different . . . ." Id. In the instant case, we find no indication that the legislature provided any substitute remedy, nor does the State make this argument. Therefore, we must turn to the second prong of the Berry test.
3. Elimination of Clear Social or Economic Evil
The State contends that even if a remedy was abrogated, the amendment is constitutional under the second prong of the Berry test, which provides that where no alternative remedy has been provided, "abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective." Id.
To determine whether the legislature was justified in abrogating the remedy for negligence of a municipality, we review the legislative history of the 1987 amendment "to determine the reason for its enactment and whether the abrogation was 'an arbitrary or unreasonable means for achieving' the elimination of a 'clear social or economic evil.'" Day v. State, 1999 UT 46, 44, 980 P.2d 1171 (quoting Berry, 717 P.2d at 680). In a number of cases we have examined whether in abolishing a remedy the legislature identified a clear social or economic evil, and then employed reasonable means to eliminate the evil.
In Hirpa v. IHC Hospitals, Inc., 948 P.2d at 793, this court held that Utah's Good Samaritan Act, Utah Code Ann. ยง 58-12-23 (1996), met the second step of Berry's two-step analysis. Id. at 793. The analysis in Hirpa assumed that prior to the Good Samaritan Act's passage, the common law rule that a physician who is under no affirmative duty to assist a person in distress is held to a duty of due care if he or she chooses to respond and render voluntary emergency assistance, applied. Id. at 793. We held that the Good Samaritan Act did not violate the open courts provision by displacing the common law rule because the legislature legitimately characterized the common law rule as a social evil by discouraging physicians from responding to emergencies and rendering medical care in life threatening situations. Id. at 793-94. Hirpa took particular notice of the manner in which the legislature sought to accomplish its goal. The opinion stressed that the provisions of the Good Samaritan Act were narrowly tailored. Id. at 794. Only good faith providers were immunized. Id. The immunity applied only to physicians rendering emergency care and not to care after the emergency had ended. Id. The court continued:
Finally, as we have interpreted the act, it applies only to medical doctors who had no pre-existing duty to render aid. Thus, the act immunizes only true volunteers who render aid even though they are not obligated to do so. We think these limitations i
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