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Day v. State5/11/1999
may be actionable by one injured as a result of the negligence. We have established that point above.
The proposition that Article I, section 11 should be construed to protect only those rights and remedies that were recognized under the common law at the time of statehood is not supported by Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985), or by its progeny with one exception, or by the case law preceding Berry. Indeed, the proposition that section 11 protects only those rights and remedies that existed at the time of statehood conflicts with the tenor and underlying purpose of Article I, section 11. To hold that Article I, section 11 rights are defined by the state of the law at the time of statehood would be to ossify the law pertaining to remedies designed to protect the constitutionally protected values of "person, property reputation." In addition, it would improperly interfere with legislative prerogatives necessary to make the law responsive to the exigencies of changing conditions. The plain language of section 11 provides no basis for concluding that those rights are time-bound. Article I, section 11 states in pertinent part:
"All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay . . . ."
The proposition that the rights protected by this provision are defined by the law as it existed in 1896 has been rejected in a number of opinions of this Court, both expressly and implicitly, in part because it has no textual basis, would tend to freeze the law at a particular point in time and thereby subvert the normal and necessary evolution of the law as times change, and would otherwise improperly interfere with legislative prerogatives. Berry made explicit that a person's right to a remedy for an injury to person, property, or reputation by due course of law is not determined by whether the common law recognized the particular cause of action in 1896:
" either 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. It is, in fact, one of the important functions of the Legislature to change and modify the law that governs relations between individuals as society evolves and conditions require." Id. at 676 (citation and footnote omitted).
In Cruz v. Wright, 765 P.2d 869 (Utah 1988), Justice Zimmerman wrote for the Court:
"Nowhere in this state's jurisprudence is it suggested that article I, section 11 flatly prohibits the legislature from altering or even abolishing certain rights which existed at common law. See Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 676, 680 (Utah 1985) . . . . In fact, in Berry, we specifically stated that the legislature may eliminate or abrogate a cause of action entirely if there is sufficient reason and the elimination or abrogation "is not an arbitrary or unreasonable means achieving the objective." 717 P.2d at 680." Id. at 871.
This Court has sounded the same theme in numerous other opinions. See DeBry v. Noble, 889 P.2d 428, 435-36 (Utah 1995); Horton v. Goldminer's Daughter, 785 P.2d 1087, 1090 (Utah 1989); Sun Valley Water Beds v. Herm Hughes & Son, Inc., 782 P.2d 188, 191 (Utah 1989); see also Paxton R. Guymon, Note, Utah Prison Physicians: Can They Commit Malpractice With Impunity or Does Their Official Immunity Violate the Open Courts Clause?, 1997 Utah L. Rev. 873, 882, 897-900. More recently, Justice Howe, writing for a unanimous court in Hirpa v. IHC Hospitals, 948 P.2d 785, 792 (Utah
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