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Laney v. Fairview City8/9/2002
ssed constitutional muster under the second prong of the Berry test, the abrogation of the remedy was not an "arbitrary or unreasonable means for achieving" the elimination of a clear social or economic evil. Berry, 717 P.2d at 680.
In the only case that we have found which did not involve an act of the legislature, this court abolished the common law tort of criminal conversation and justified its abolition under the open courts provision on the ground that the cause of action was "unfair and bad policy," "serve " no useful purpose, was subject to abuse, and protected interests that were already adequately served by the tort of alienation of affections. Norton v. Macfarlane, 818 P.2d 8, 16-17 (Utah 1991).
Recently, in Day v. State, 1999 UT 46, 980 P.2d 1171, we relied on the open courts provision to strike down a statute granting immunity for negligent operation of an emergency vehicle in circumstances where immunity had not previously existed. We declared the statute unconstitutional because the legislature was not acting to obviate a "clear social evil" in this state. Id. at 46 (citation omitted). The sponsor of the legislation had explained that the statute was necessary because of a rash of frivolous lawsuits, "especially in California." Id. We noted that on its face, the sponsor's statement did not identify any social, economic, or any other evil in Utah. No evidence was presented that Utah had experienced a rash of similar lawsuits, or was likely to. Id.
In another case, Lee v. Gaufin, 867 P.2d 572, 589 (Utah 1993), three members of this court struck down a statute of repose for minors in medical malpractice cases under article I, section 24, the uniform operation of laws provision. The remaining justices concurred in the result on the ground that the statute violated article I, section 11. Id. at 590 (Zimmerman, J., and Hall, C.J., concurring.) The statute at issue required a minor to bring an action within two to four years after an alleged malpractice injury . Id. at 574-75. However, since a minor has no legal and ordinarily no actual ability to bring an action, the net effect of the statute was to deprive the minor of the cause of action before the minor was legally entitled to assert it. Id. at 578. The two-judge concurrence states:
he legislation's supporters have not carried their burden of proof. As the majority opinion demonstrates, the justifications advanced for the legislature's severe abridgment of the right of this narrow category of potential plaintiffs to bring their actions for actual injuries suffered are speculative, to put it charitably. The defenders of this legislation certainly have not shown that the effective elimination of the minor's legal right to sue for medical malpractice is a reasonable, non-arbitrary means for lowering medical malpractice premiums in Utah. Absent such a showing, they have failed to rebut the presumption of unconstitutionality that attaches to legislation that so severely limits a common law right of action protected by article I, section 11. Id. at 592.
With that backdrop of the history of cases where we have applied the second prong of the Berry test, we turn to the instant case. At the outset, we call attention to the strong words of caution in Brigham v. Moonlake Electric Ass'n, 24 Utah 2d 292, 470 P.2d 393 (1970):
A high tension transmission wire is one of the most dangerous things known to man. Not only is the current deadly, but the danger is hidden away in an innocent looking wire ready at all times to kill or injure anyone who touches it or comes too near to it. For the average citizen there is no way of knowing whether the wire is harmless or lethal until it is too la
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