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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
gs in turn.
First, Berry did not identify the interests protected by article I, section 11. That provision states that "every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law." Utah Const. art. I, ยง 11. Berry claimed that under its interpretation, "neither the due process nor the open courts provision constitutionalizes the common law or otherwise freezes the law governing private rights and remedies as of the time of statehood." Berry, 717 P.2d at 676. Indeed, Berry recognized that "one of the important functions of the Legislature is to change and modify the law that governs relations between individuals as society evolves and conditions require." Id. However, because of Berry's failure to articulate a test for determining the rights to be protected, courts implementing Berry over time resorted sub silentio to the common law as declared by this court in its decisions, either as it existed in 1896 or presently, as the definition of the article I, section 11 protected rights. The consequence of adopting this court's common law varied, depending upon the particular legislative limitation at issue. Berry's progeny can be divided into two categories: those cases involving expansion of governmental immunity and those concerning limitations on any other common law cause of action. Together, these two lines of cases have shown that whatever the laudable motivation underlying it, the Berry analytical model is unworkable, leads to strained analyses and quixotic results, and distorts the relationship between the legislature and the courts. I address these two lines of cases in turn.
The first of these lines of cases concerns governmental immunity. In this context, despite Berry's disclaimer that article I, section 11 does not constitutionalize the common law as it existed at statehood, the cold fact is that whether a cause of action existed in 1896 has become the determinative factor for whether article I, section 11 is transgressed by the enactment of governmental immunity. For example, in McCorvey v. Utah State Department of Transportation, 868 P.2d 41, 47-48 (Utah 1993), we found that section 63-30-34(1), which imposes a cap on damages recoverable from governmental entities, did not violate article I, section 11 under the facts of that case, because at common law there was no right to recover from the state for injuries resulting from the negligent maintenance of public roads. Similarly, in DeBry v. Noble, 889 P.2d 428, 435 (Utah 1995) (citing Madsen v. Borthick, 658 P.2d 627, 629 (Utah 1983)), we reiterated that "the scope of the protections afforded by article I, Section 11 had to be viewed in light of the immunities that were recognized when the Utah Constitution was adopted." DeBry then proceeded to determine that the inspection of buildings and the issuance of temporary occupancy permits are government activities that were immune from liability under the legal regime that existed at the time of statehood. Therefore, we concluded that subsections 3 and 4 of section 63-30-10, which excepted such activities from the general waiver of immunity for injuries caused by negligence, did not run afoul of article I, section 11.
Absurd results can occur when the existence of an action at common law at the time of statehood is used as the litmus test for determining whether an article I, section 11 right is involved. For example, while no right of action existed at common law to sue the state for negligence in maintenance of public roads, McCorvey, 868 P.2d at 47, a right of action existed at common law to sue a city for negligence in maintenance of public roads. See Bowen v. Riverton City, 656 P.2d 434, 437 (Utah 1982); Bills v.
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