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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
utionalized the common law as it existed in 1896. See 122-34. That contention is unequivocally wrong. Berry did not do that; in fact, it made clear that the Legislature was not bound by the common law.
I turn first to the law that was actually established in Berry. Justice Zimmerman asserts that Berry had the effect of constitutionalizing the common law and that it improperly restricted legislative prerogatives. Justice Zimmerman's words for a unanimous Court in Cruz v. Wright, 765 P.2d 869 (Utah 1988), were true when written, are true now, and refute his newly contrived position that Berry constitutionalized the common law and improperly interferes with legislative power. In Cruz, Justice Zimmerman quite correctly described Berry's construction of Article I, section 11 and its relationship to the common law:
"Nowhere in this state's jurisprudence is it suggested that article I, section 11 flatly prohibits the legislature from altering or even abolishing certain rights which existed at common law. See Berry ex rel. Berry v. Beech Aircraft, 717 P.2d 670, 676, 680 (Utah 1985). In fact, in Berry, we specifically stated that the legislature may eliminate or abrogate a cause of action entirely if there is sufficient reason and the elimination or abrogation "is not an arbitrary or unreasonable means achieving the objective." 717 P.2d at 680." 765 P.2d at 871 (emphasis added) (some citations omitted). Consistent with this language, Cruz held that the Married Woman's Act, which abolished a married man's common law right of action for loss of his wife's consortium, did not violate Article I, section 11. See id. at 869, 871. Justice Zimmerman's statement in Cruz about Berry's effect on legislative power and the common law is irreconcilable with what he now says.
Nothing in Berry or its doctrine supports Justice Zimmerman's newfound contention. The Berry opinion is as explicit as language can be that the proper construction and application of Article I, section 11 does not constitutionalize the common law. See Berry, 717 P.2d at 676; Guymon, 1997 Utah L. Rev. at 898-99.
The issue in Berry was the constitutionality of a products liability statute of repose that abrogated all legal remedies for personal and property injuries caused by defective products after an arbitrarily fixed period of time, irrespective of the nature of the particular product or its potential dangerousness. The justification for the statute was that it was necessary to solve the problem of rapidly escalating products liability insurance premiums. As shown below, that "justification" was a mere pretense with no factual basis.
Berry was an action for damages arising from a husband's and father's death caused by an airplane crash. The complaint alleged actions based on common law negligence, strict liability, and breach of warranty. In holding unconstitutional the statute's abrogation of all legal remedies before the injury occurred, the Court relied on the plain meaning of the remedy clause in section 11. The legal right to recover for an "injury" to one's "person" was clearly established by the extant substantive tort and products liability law. After carefully assessing the Legislature's "factual" findings that supposedly justified its abrogation of remedies, the Court held that the statute of repose was an arbitrary and wholly unjustified abrogation of every possible legal remedy plaintiffs had for their injuries.
Nevertheless, Berry made clear that no person has a "vested right" in a rule of law, as such, under either the open courts or the due process provision of the Utah Constitution. 717 P.2d at 675. As a corollary to that principle, Berry declared, contrary to
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