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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
Salt Lake City, 37 Utah 507, 512-15, 109 P. 745, 746-47 (Utah 1910). No coherent policy reason exists for distinguishing between the individual injured on a state road within city limits and the individual injured on a city road. Yet, this accident of history in the development of the common law at statehood is outcome determinative under Berry.
Another example of the difficulty of using the common law at statehood as the test for determining whether a constitutional right exists is Day v. State, 882 P.2d 1150 (Utah Ct. App. 1994), cert. granted, 892 P.2d 13 (Utah 1995). Day, with facts somewhat analogous to this case, involved an automobile accident between the plaintiff and a police suspect being closely pursued by a highway patrol officer. See id. at 1151-52. The plaintiff was struck by the fleeing suspect when the suspect ran through a red light. See id. at 1152. The plaintiff brought suit against the Utah Highway Patrol and the individual trooper involved in the case, but the trial court granted summary judgment for the defendants on the basis of section 63-30-7(2) of the Utah Code (Supp. 1990) (repealed by Act of Feb. 27, 1991, ch. 76, ยง 10, 1991 Utah Laws 230, 233), which provided immunity to both defendants under the facts of that case. See id.
To determine whether that grant of immunity was constitutional under the Berry analysis, the court of appeals first determined whether a cause of action existed at statehood under the facts of that case. In so doing, the court of appeals was reduced to searching for cases near the turn of the century involving hot pursuit by a law enforcement officer of a fleeing suspect, presumably on foot or by horse, bicycle, or buggy. See id. at 1157-58. Finding no cases on this issue, the court of appeals stated the obvious: "Certainly the likelihood of harm at the turn of the century to an innocent bystander was considerably less from pursuit by horseback as compared to high speed automobiles on congested streets and highways." Id. at 1158 (emphasis added). Ultimately, the court of appeals was forced to rely on a case involving a state deputy sheep director, who allegedly had negligently imposed a quarantine, to determine whether a cause of action would have existed under the common law at statehood. See id. (finding Garff v. Smith, 31 Utah 102, 86 P. 772 (1906), necessitated Conclusion that cause of action would not lie at common law under facts of Day). In Conclusion, the court of appeals admitted: "Our determination of common law remedies existing at or near the time of statehood is simply our best assessment of what a court during that era would have ruled if the issue had arisen." Id.
Day provides a clear example of why Berry has proven to be unworkable in the area of governmental immunity. Courts are required to engage in an analytical wild goose chase for common law cases that are on point with a modern-day controversy. The increasing complexity of society has multiplied the variety of cases brought today compared to 1896. This variance in the fact patterns presented in contemporary cases compared to those at statehood places courts in the awkward position of trying to force current cases into pigeon holes crafted by the common law of 1896. Furthermore, because the fit between current controversies and the common law at statehood is so imprecise and because the state of the common law at statehood is so difficult to determine, given the relative paucity of prestatehood decisions by this court, the 1896 common law standard is subject to manipulation. Compare Ross v. Schackel, 920 P.2d 1159, 1162-65 (Utah 1996) (majority relying upon Garff to conclude that prison doctor's provision of medical services to prisoners was discretionary at sta
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