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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
e of statehood would have provided immunity for a volunteer's negligence and concluded that there would have been immunity. See id. at 793. But that inquiry, apparently prompted by the opinion in Ross v. Schackel, was wholly unnecessary; it was certainly not required by our opinion in Berry. Hirpa's holding that the statute was constitutional under the Berry test was by itself dispositive.
In sum, this Court has made clear in numerous cases that the Legislature has the power to create, modify, and abolish causes of action. Berry quoted Masich that "`no one has a vested interest in any rule of law,'" 717 P.2d at 675, and that "` ecessarily, the Legislature has great latitude in defining, changing, and modernizing the law, and in doing so may create new rules of law and abrogate old ones.'" Id. at 676. These same principles have been restated and reemphasized in numerous other cases. See, e.g., Horton, 785 P.2d at 1087; Sun Valley, 782 P.2d at 188.
In sum, Hirpa, Cruz, Berry, Norton, and Masich clearly demonstrate that our section 11 cases do not "freeze the common law," elevate it over the statutory law, or unduly restrict legislative power. Indeed, Justice Zimmerman's present position rings hollow in light of his prior ardent advocacy of the principles laid down in Berry, including its construction of Article I, section 11.
Justice Zimmerman's repetitious assertions that Berry constitutionalized the common law as of 1896 are simply incorrect. There is nothing in the Berry opinion that supports that contention. In fact, Berry explicitly states the exact opposite: " either the due process nor the open courts provision constitutionalizes the common law or otherwise freezes the law governing private rights remedies as of the time of statehood." Berry, 717 P.2d at 676; see also DeBry v. Noble, 889 P.2d 428, 435-36 (Utah 1995). Indeed, this Court has abolished outmoded common law causes of action and immunities that existed in 1896 and has sustained legislative enactments doing the same. Norton, 818 P.2d at 8, abolished the tort of criminal conversation; Hackford v. Utah Power & Light Co., 740 P.2d 1281 (Utah 1987), construed a statute that abolished the common law right of a husband to recover for personal injuries to his wife and that gave the right of recovery to the wife; Stoker, 616 P.2d at 590, abolished intra-family tort immunity with respect to intentional batteries committed by one spouse on another. As noted above, the No-Fault Insurance Act barred tort recovery of certain kinds of damages for automobile accident victims in lieu of an insurance remedy. The most far-reaching legislative abolition of common law tort remedies is in the Workers' Compensation Act and the Occupational Disease Act, which bar common law negligence actions against fellow workers and employers and created new statutory remedies that provide limited insurance benefits based on strict liability of the employer. Masich specifically sustained the constitutionality of the Occupational Disease Act and, by implication, the constitutionality of the Workers' Compensation Act, against an attack under Article I, section 11. The Court did not give the slightest suggestion that the common law remedies that were abrogated had any constitutional status, as Justice Zimmerman would have it.
In short, Justice Zimmerman's contention that our cases have constitutionalized the common law as it existed in 1896 (or at any other time) misstates the cases that have been decided under Article I, section 11 and the principles that govern the application of that provision. His Conclusion that Berry's analytical model is "unworkable, leads to strained analyses and quixotic results, and distorts the relations
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