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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
afe products. Berry, 717 P.2d at 681-83.
Berry's policy concern for maintaining financial incentives to produce safe products, i.e., tort liability for manufacturers and suppliers, sheds illumination on the extreme lack of deference this court gave legislative fact findings. Speaking from a purely theoretical viewpoint, without any hard empirical evidence to support our dissatisfaction with the legislature's decision to pass the statutes of repose, we explained our safety concerns as follows:
"The Utah statute of repose [for products liability claims] is likely to provide less incentive to manufacturers to take adequate safety precautions in the manufacture and design of products having a useful life of more than [the statute of repose time period], thereby increasing the already substantial number of persons who have been injured or killed by shoddy design or workmanship. Thus, the statute may well be counterproductive in terms of public safety." Id. at 683 (emphasis added). While safety incentives may be relevant, the court's Discussion of them shows that we gave no deference to the legislature on this matter. Berry essentially assumed that the legislature either had not considered this obvious safety issue or had considered it and wrongly concluded that the six- and ten-year statutes of repose did not present great enough risks to the public interest to prevent their enactment. Although in the court's view, the legislature may have erred in stating the balance between the safety risks and the benefit to industry from a statute of repose, nothing in article I, section 11 bestows upon this court the unfettered right to second-guess the legislature on such a matter; nothing in that provision eliminates the traditional deference we give to the legislature when it makes policy and fact judgments. Yet we gave it no deference. Relying almost exclusively upon law review notes and cases from other jurisdictions in dismissing the legislature's justifications, we simply re-found the legislative facts differently and opined that more people would now be "injured or killed by design or workmanship." See id. at 681-83.
I recognize that we should not lightly overrule our prior cases. See State v. Menzies, 889 P.2d 393, 398-400 (Utah 1994). The burden is on me to demonstrate why that step is necessary. As the sole open Dissenter today from our continued adherence to Berry's analytic scheme, and as one who heretofore has attempted to make it work in case after case, I recognize that I carry a particularly heavy burden. But I have finally become convinced that the past fourteen years under the Berry regime have shown that decision's operative test to be deeply flawed in its formulation and articulation. More importantly, a thorough parsing of article I, section 11 demonstrates to me that Berry incorrectly concluded that the open courts provision provides very specific substantive limitations on the legislature. I will first address the shortcomings of Berry's analytical model in order to better explain why the constitutional protections of article I, section 11 are procedural, not substantive.
The Berry test suffers from two fundamental failings. First, Berry never clearly dealt with the question of precisely what interests the open courts provision protected. Berry simply assumed that the right to recover for an injury caused by a product fell within the protection of the provision and moved on to analyze the validity of the legislature's attempt to limit that right. Second, the second prong of the Berry test has proven to be such a strict standard in application that it can rarely be satisfied, thus depriving the legislature of any discretion in the area. I address these failin
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