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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
remedy by due course of law for an injury done to him in his person, contrary to the provisions of the Constitution of this state." Id. at 623. The Court then quoted Article I, section 11 and acknowledged that if the Legislature were to abolish all right to compensation and all common law rights for negligence by an employee, "no contention could reasonably be made that it was a proper exercise of the police power. The reverse would be true and pauperism with its concomitants of vice and crime would flourish." Id. at 624.
Although the Act provided no alternative statutory remedy for partial disability, the Court stated that overall the Act provided broader remedies in some respects to employees than existed at common law. The Act abolished the common law fellow-servant rule and the defenses of assumption of risk and contributory negligence, and imposed, in lieu of common law damage actions, statutory actions for compensation (not damages) based on strict liability. The Court stated, "The humanitarian principles of the occupational disease act do overcome in part, the inadequacy of relief at common law for a class of employees, and the act should not be discarded because some members of the class have rights, which may be adversely affected." Id. at 624.
Significantly, all members of the Court that decided Masich--Justices Latimer, McDonough, Wolfe, Pratt, and Wade (who Dissented on the narrow ground that as a matter of statutory construction the Act did not bar a common law claim for partial disability) were of the view that Article I, section 11 imposed a substantive guarantee of a remedy by due course of law that the Legislature could not ignore without having a substantial, non-arbitrary basis for doing so. That, indeed, has been the unanimous view of each and every Justice of this Court who has ever ruled on the construction of Article I, section 11--some thirteen Justices in all, including Justice Zimmerman--until his lone opinion in this case.
Hirpa v. IHC Hospitals, Inc., 948 P.2d 785 (Utah 1997), decided barely a year ago with the concurrence of Justice Zimmerman and all other members of the Court, refutes Justice Zimmerman's assertion that the Berry test is unduly rigid and unworkable. Hirpa relied on Berry in sustaining the constitutionality of the Utah Good Samaritan Act against a challenge under Article I, section 11 of the Constitution. That Act barred all negligence actions against a doctor who volunteered his services in an emergency situation. In applying the Berry test, the Court first found that the plaintiff had no alternative remedy to that of an action against a doctor who allegedly committed malpractice as a volunteer in an emergency situation. Id. at 792. Nevertheless, the statute was held constitutional under the second part of the Berry test. The Court found that the legislative purpose of the statute was to eliminate the "evil" of deterring doctors from giving medical assistance in emergencies because of the common law rule that legal liability could be imposed on a doctor who volunteered medical care in an emergency. The Court stated:
"Receiving physician-rendered medical care can significantly increase the likelihood of surviving a life-threatening situation. Therefore, it must be considered a social evil that the common law actually contained disincentives to licensed medical providers who were potentially able to respond to an emergency and render medical care. The legislature remedied this situation by immunizing licensed medical providers who sought in good faith to aid others by rendering emergency medical care." Id. at 793-94.
It is true that the Court also undertook an analysis of whether the common law at the tim
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