Condemarin v. University Hospital

CONDEMARIN, individually and Crelia Litem Leonel Ad Guardian Condemarin,

Condemarin, and Jose Appellants, Plaintiffs and HOSPITAL, University of UNIVERSITY Larkin, M.D., Utah, Gayle M. R.M. Car Dibble, M.D., ter, M.D., John Carlos Lovell, Timothy Houpt, C. Paul R. Salt M.D., Soper, and John Does I Jane City, plaintiffs appellants. Lake X, Appellees. through Defendants Williams, Lybert, Merlin David G. R. No. 20602. Dam, Evans, Paul Van William T. Salt City, appellees. Lake for defendants and Supreme Court of Utah. DURHAM, Justice: 1,May important questions This case raises Rehearing July Denied impression regarding first the Utah Gov- ernmental Act. Utah Code Ann. (1986 Supp.1988). 63-30-1 to -38 & It §§ interlocutory appeal comes to us on an plaintiffs’ from the denial of motion for a summary judgment striking provi- certain sions of the Act as unconstitutional.1 following undisputed facts were the trial court. Plaintiff Crelia Condema- rin, pregnant who was with her second child, Hospital went to Cottonwood in the early morning May after sever- al suspected prema- hours labor and a rupture ture of membranes. Because her treating physician anticipated high risk delivery, she was transferred on his orders University Hospital in Salt Lake City. Plaintiff Leonel Condemarin was born at University Hospital that same day emergency after an caesarean section. Attending physicians concluded that he suf- fered fetal “severely distress and was as- phyxiated” birth, which resulted in “se- neurologic damage,” vere including impair- hearing, sight, ments of ability to be fed, as well as a spas- seizure disorder and ticity. alleged

1. Plaintiffs that sections repealed 63-30-3 and -4 death. Section 63-30-29 was abrogate worked to a common law cause of provision and a new in section 63-30-34 in- negligence against employees action for $250,000. permissible creased the amount government-owned health care facilities. Repealed section 63-30-29 and former section arose, collectively At the time this 63-30-34 will be lawsuit sections referred to as the 63-30- $100,000 imposed "recovery they operated 29 and -34 limit on limits statutes” since person conjunction amount a could recovery. purposes claim an unin- to limit For government entity $100,000 sured injury appeal, because of cap applicable.

349 reasons for its continu None of the treating physician plaintiff’s The minor analysis. No one ance can withstand have a normal the child will believes immunity. governmental defends total and handi- span severely retarded life as fact, In it does not exist. It has become is little capped He believes there person. exceptions, both riddled with and mental physical plaintiffs doubt ..., exceptions judicial ... and at the asphyxia are related defects illogically as to cause serious operate so cost likely that the of his It is time birth. injured who are inequality. Some care related to the custodial of medical and recover, agencies can oth governmental Leonel neurologic disorder of severe attending injured while ers cannot: one aspects will in its various Condemarin public park may community theater in a $100,000. sum of greatly exceed the Alto, City v. Palo 100 recover {Rhodes in this defendants Each of the individual 336, 341-342, 639), Cal.App.2d person provided who care action and each play in a children’s injured but one Hospital University dur- plaintiffs at the ground may City Long v. not {Farrell employee delivery was an the labor and 818, 819-920, Beach, Cal.App.2d 283 132 University Hospital or the Universi- of the 296); in for torts committed P.2d acting as such at ty of Utah and was “governmental course of a function” question. time in liability, there is no unless the tort be {Phillips City classified as a nuisance v. Immunity I. Governmental Pasadena, 104, 106, 162P.2d 27 Cal.2d of 625). Hospitals and inequitable illogical ex in case: treme is reached we time in the evolu appropriate It is at this a rule that denies recov asked to affirm governmental immu tion of the doctrine of hospital ery injured county to one in a origins. In nity to remind ourselves of its although recovery may hospital, district Coming Hos Muskopf the 1961 case of v. city injured had one in a and coun District, P.2d 55 Cal.2d 359 pital ty hospital. City County Beard (1961), Cal.Rptr. Traynor de Justice Francisco, Cal.App.2d San history tailed the of the rule: 755-768, 180 P.2d 744. shifting fortune of the rule of 458-59, 460, 214-215, 216, 359 P.2d at Id. at applied governmental immunity as omitted). 90-91, (citations Cal.Rptr. history of hospitals is illustrative of the mat Immunity from existed as a beginning the rule itself. From government for ter of common law Utah misstatement, confusion, there has been governmental, op engaging entities and retraction. At the earliest common Ra posed proprietary, activities. See “sovereign immuni- law the doctrine of 2d Ogden City, mirez v. Utah produce ty” did not the harsh results it (1955), cases cited today. It was a rule that allowed does therein. 63-30-3 of Utah Gov Section began per- relief. It as the substantial Act, July effective ernmental king, gained im- prerogative sonal immunity, provides governmental for century metaphysi- petus from sixteenth waived, governmental for “all enti unless concepts, may have based on the cal been injury results from ties ... maxim, and misreading of an ancient function, the exercise of a completely only rarely had the effect of hospital ... governmentally-owned denying compensation. How it became approved professional ... health for a rule the United States basis training program care clinical conducted governments the federal and state private either facilities.” has did not have to answer for their torts mysteries legal been called “one of the Act, passage After this Court Borchard, Governmental Re- evolution.” “governmental/pro applied the traditional Tort, L.J., 1, sponsibility in 34 Yale 4. prietary” test until Salt Standiford (Utah Corp., 605 P.2d 1230 City Lake public buildings case, rejected fective conditions 1980). this Court In that Ann. 63-30-5 to structures. Utah Code §§ test: addition, immunity government -9. proprietary-governmen- Originally, the caused entities is waived as a device to created tal distinction was employee negligence committed within produced the harsh results limit except scope employment where the in- sovereign immunity. The doctrine of specific juries basis that a arise out of certain activities operated on the doctrine 63-30-10(l)(a) (l). for the torts Each public entity should be liable listed in section proprie- of a excepted in the exercise in section cоmmitted of the activities listed not for those commit- tary is, function but interestingly, within the “core” of -10 governmental a in the exercise of ted governmental discussed in functions Stan- Lake v. Salt function. See Gillmor unique Each of “such a nature diford. (1907); Sehy P. 714 City, 32 Utah govern- only performed by that it can 535, 126 P. City, 41 Utah Lake Salt agency mental or that it is essential (1912); City, Alder v. Lake Salt governmental activity.” core of Standi- (1924); 568, 231 P. 1102 Rollow v. Utah at 1237. ford, 605 P.2d 243 P. 791 Ogden City, Utah statutory The net result of this classifica- (1926); City, Lake Niblock v. Salt government-owned tion scheme is that 111 P.2d 800 The dis- Utah facilities, hun- health care out of all the however, is, of the tinction “one most entities, government dreds of have been law,” Davis, unsatisfactory known to the singled immunity for out for “retained” Law, 9, “Tort Ch. Liabil- Administrative npn Moreover, governmental functions. Officers,” ity and of at of Governments immunity the notion of “retained” is de- inaccurate, scriptively facilities since such protected by and activities were not immu- may Clearly, factors which lead to nity original at common law or under the contrary unpredictable such results version of the Utah Governmental Immuni- upon provide adequate test do ty Act.2 agencies rely governmental which can plain enough It seems that the intent of planning budgets providing their was to retain then [section 63-30-4] liability, by way their tort whether law, existing as to and as both coverage insurance or otherwise. liability, except nonexempt for the ar- (citation omitted). Id. Stan- specifically eas set forth in 63- Section set forth a new standard for deter- diford act, 30-10 of the new none of which mining governmental immunity under sec- operation hospital. covers the of a It is activity tion 63-30-3: “whether the under proprietary therefore our conclusion that unique consideration is of such nature municipality of a functions are not within performed by govern- that it can coverage of the Utah Governmental agency mental or ... it is essential to the Immunity Act. governmental activity.” core of Id. at Greenhalgh Payson City, 1236-37. (Utah 1975) (citation omitted). Immunity the Utah Under Governmental Act, The 1978 amendments to the Utah Gov- specifically immunity is waived for all Immunity changed ernmental Act also government (1) sec- entities as to contractual 63-30-4(4). (2) The amendment states: obligations, involving as to actions real employee may personal property, (3) negligent personally be held lia- “[N]o operation nonemergency vehicles, occurring during for acts or motor ble omissions (4) performance duties, highways, bridges, employee’s for defective structures, employment other for nonlatent de- scope within the or under original any injury 2. The version of the Utah Governmen- immune from suit for Act, July tal effective read as result from the activities of said entities wherein "Except may provided entity engaged follows: be otherwise said in the exercise and dis- act, governmental charge in this all entities shall be function.” government entity No other is so insulat- authority, unless it is established color of ed, negli- failed to act due no other employee acted or class of victims of government Thus simulta- gence by employees to fraud or malice.” has health neously adding govеrnment-owned so treated. been category govern- care facilities to the posi- The defendants this case take the suit, legisla- ment entities immune from sovereign immunity tion that because was 63-30-3, ture, brought employ- via section principle at the well-settled time Utah coverage ees of those entities within adopted, challenged Constitution was statute, change in in section another provisions of the Im- Utah Governmental 63-30-4(4). Consequently, immunity for munity deprive plaintiffs Act do not employees govern- the ministerial acts property rights. analysis remedies or This performing nongovernmental ment entities overlooks the fact that at common law the “retained,” created, not functions was nongovernmental proprietary or functions immunity the 1978 amendments. Such was government protected entities were not State, development. In Frank a new Utah, liability from nor their em- were 1980), (Utah 613 P.2d 517 this Court ob- ployees performed who those functions. served: Although generally it is true that the Utah Immunity The Utah Act Governmental expanded Governmental Act individuals; application has no its government liability, that is not the case governmental function is confined to “en- respect proprietary nongovern- principles tities.” Common-law of sover- functions, government employ- mental however, eign developed, immunity have (as performing operational opposed ees protection which offer to the individual discretionary) scope gov- acts within the under certain circumstances. The case ernmental functions. those two instanc- Cornwall v. Larsen [571 es, the 1978 amendments restricted liabili- (Utah 1977)] proposition stands for the instance, ty. employ- In the first where an governmental agent performing that a a employed nongovernmental ee activi- discretionary function is immune from ties, right restricted is one exist- therefrom, injury arising suit for where- at common ed law. employee acting as an in a ministerial capacity, though may in- even his acts appear regard Defendants also making, volve some decision is not so section 1978 amendments to 63-30-3 as protected. having operation established that the of a

governmentally facility health care owned holding Other reasons for the “governmental above is a function” under the one, contrary manifest. For it is It is true that this as state. Court assumed deny governmental immunity reason to State, (Utah much in Frank v. 613 P.2d 517 public employer grant to a and then it to observe, 1980). however, We now that the very employee allegedly causing operation did not make the “ Moreover, injury. grant a facility ‘governmental health care a func- would, present necessity, in the case statute,” contemplated by tion’ as practitioners employed, shield all even Rather, legis- the Court said Frank. temporary under contract from another simply category lature added to the source, by governmental health care government entities section 60- covered facility any liability malpractice. from for (i.e., exercising governmental those Frank, (citations omitted). functions) 613 P.2d at 520 categоry consisting a new facilities, government-owned health care changes

Thus the contained in the 1978 whether or not those facilities are exercis- amendments to the Act created a number classifications, ing governmental nongovernmental including special sub- government-owned plain language functions. The class of and struc- entities insulated, along which are with their em- ture of section 63-30-3 admit of no other ployees, doubt, course, from construction. There result- is no nongovernmental functions. that health care facilities have the same engaged nongovernmental enti- who is government the Act as status under func- tions; functions. governmental performing

ties chal- precisely the classification But that is full, (2) rather than to recover of one special treatment lenged here—the entity limited, government damages from entity protection government class of functions; performing governmental functions, governmental and of all of its nongovernmental. full, rather than to recover therefore confuses position Defendants' limited, compensation from a First, ways: it assumes analysis in two tort-feasor. the func- that all of examination without University Medical of Utah tions of Equal II. Protection func- “governmental qualify as Center 24 of the Utah article Under earlier, there is no pointed As out tions.” (“all general nature laws of a Constitution for such as- statutory or factual basis two-part application”), uniform shall have proceeds assumption sumption. From uniform necessary to ensure the test high risk and generalizations about “First, must operation of the laws: a law per- must be high of activities which cost a class. apply equally persons to all within Those ar- by government entities. formed Second, statutory classifications and real, if guments only persuasive can given the classes the different treatment is- governmental functions are at essential that have a must be based on differences weight if They the same sue. do tendency objec- to further the reasonable nonessential, nongovernmental functions Lewis, 693 of the statute.” Malan v. tives Standiford, generally are involved. See (Utah 1984) (citations omit- 1230; City Lake Johnson Salt ted). recently This Court noted: (Utah 1981). Corp., The Act 629 P.2d 432 tradition, operation long purport to define the State courts ... have a does not gov- hospital per stretching se as the exercise of a into the nineteenth cen- back function; hospitals only gives ernmental tury, being willing far less to find that govern- the same status under the Act as underlying legislative classifications eco- performing govern- ment entities which are While regulations nomic are reasonable. mental functions. more deferential state courts have been legislative classifications at some Second, position collapses defendants’ others, they have never times than at recovery into the the classification issue review function to the abandoned their question.3 limits This interferes with the degree that the federal courts have since ques- analysis of the article result, pass the mid-1930’s. As a It tions under the Utah Constitution.4 muster, state cоnstitutional true, argue, as defendants that there is no higher de measure must often meet fundamental to recover unlimited than per- facto standard of reasonableness damages government entities forming governmental imposed by the federal courts. functions. this would be case, however, rights sought to be re- Supply Fuel Co. v. Salt Lake Mountain stricted include: (Utah 1988). City Corp., 752 P.2d We therefore first examine the reasonable

(1)The right any to recover statutory in this performing ness of classifications employee from an nondiscre- relationship tionary government employer for a scheme and then assess the acts defending any supra. before tribunal in this 3. See note 1 or State, counsel, by himself civil cause to or provision 4. That reads as follows: party. which he is every person, open, All courts shall be injury person, for an done to him in his course, question the Univer- 5.Of of whether remedy property reputation, by shall have performing sity of Utah Medical Center is law, due course of which shall be adminis- governmental essential function has not been unnecessary delay; tered without denial or decided in this case. person prosecut- and no shall be barred from so, doing policy-making one. In legisla than at a the classifications between im- governmental has extended the state objective. tive reached at munity further than it ever com- earlier, classi- there are several As noted and, process, abrogated has mon law at issue. created the statute fications right of re- a well-established common law estab- on the distinctions focus Plaintiffs covery. gov- malpractice victims between lished victims of non- tort-feasors and ernmental recovery The amounts contained A more subtle tort-feasors. governmental yet another classifi- limits statutes created however, the tort line, is drawn between in addition to those summarized cation entities government of different victims only medical Not are victims of above. depends line employees, and that and their malpractice by government personnel treat- causing the scope of the activities upon the private differently from victims of tort- ed put standard forth injuries. Under the feasors, classifications but also there are “governmental Standiford, Court group itself. Those within the victim not es- include activities functions” do not minor seek and whose are 63- government. Under section sential to damages and all of their economic recover 30-3, however, activi- even “nonessential” damages up measure of noneconomic some they protected by when ties are ($100,000 cap at the time of facility. a health care engaged whose economic injuries). these Those fact, multiple with the That combination statutory limit approach losses numerous other waivers for losses and will re- may recover those “essential”), (most of them re- functions compensation for noneconomic ceive no vic- the tort sults in a distinction between Finally, those economicloss- losses. whose virtually every operational-lеvel act tims of statutory precluded limit are es exceed the victims of as essential and classified recovering out-of-pocket costs from even malpractice by government-em- medical injuries. present The resulting from their government-supervised medical ployed or disparity grave the case illustrates how earlier, this is provider. As noted service the limit and actual costs be. between immunity as to the Act waives so because plaintiffs medi- expenses of the minor The obligation, to actions any contractual as and his future edu- cal care and treatment op- negligent involving property, as to severely handi- maintenance as a cation and vehicles, nonemergency motor as eration of likely many times capped person are to be defective, unsafe, caused or to statute. recovery limit created highways, public dangerous conditions of recovery cap created a distinction be- The buildings, and other structures. Utah tort-fea- tween victims of 63-30-5, (1986). Scrutiny Ann. -9 Code §§ sors, severity of their depending on the 63-30-10, contains a waiv- of section which all; mildly receive injured injuries: the negligence immunity for and then er of most; severely moderately injured, waiver, exceptions demon- list of to or none of their injured, only a fraction directly exception that each relates strates damages. noneconomic economic and/or or “essential” function of to a “core” enforcement, e.g., law health government, summarize, of the the reasonableness To control, regulations, crowd tax and welfare depends on the statutory classifications assessment, corrections, management, land made, apart logic of the distinctions so on. fighting, fire the classification relationship between legislative objective. There net result of this classification at issue general types of classifications two state, choosing while scheme is that first, consisting here: a classification not many enterprises that are es- conduct entities, health care government-owned necessary governing, has sential they perform functions es- or not whether immunity for one of chosen to retain op- process governing, as sential care services—and those activities—health entities, government all other employees posed to to its to extend immunity depends on whether operational at an level rather whose who function rational is characteristic of the ba- governmen- which causing injury is activity second, judicial review. function; indirect classi- sis standard tal depends injured victims fication of Note, and Tort Law Target Defendants than, equal are less losses on whether their Perspective A on Medical Mal Reform: statutory recovery to, greater than Municipal Liability, 11 Vt.L. practice and largely losses are those cap and on whether (citations omitted). Rev. suffering, or economic, largely pain and said, The court in “Whether Carson both. justified a reasonable ... statute can be classification, de general As tо the first in furtherance of the inter- measure to afford argue that it is rational fendants upon restriction of depends est whether the facilities health care government-owned rights sought imposed is not private to be govern other special treatment vis-a-vis outweighs that it the benefits so serious it is a reason entities because ment-owned general sought upon conferred public treasury protect means to able Carson, public.” 120 N.H. at malpractice in of medical from the costs (citations omitted). The A.2d at 831 court The re large recoveries. surance and/or indepen- willing was not to undertake an on the same covery justified limit is basis. legislative justifi- dent examination review, standard of Under a rational basis statute, willing cation for the but it was deprivation that the defendants conclude decide “whether the statute has a fair and recovery and the rights common law legitimate legis- substantial relation to this arbitrary limitation of to an objective imposes un- lative and whether may may compensate not amount that private rights.” reasonable restrictions on out-of-pocket medical victims even for their 934, 424 Id. at A.2d at 832. re expenses is rational. This conclusion It will be seen hereafter that the New flects the almost total deference afforded Hampshire court’s “middle tier” or “inter- suspect distinctions based permits pre- mediate standard of review” classifications under a traditional cisely balancing process that can be Redish, protection analysis. Legisla See process approach. undertaken with due Response Malpractice tive the Medical process straight- approach due is more Impli Insurance Crisis: Constitutional forward, equal protection, but even under cations, 759, (1977). 55 Tex.L.Rev. heightened scrutiny some form of is war- We are convinced that such deference is type legislation ranted of at issue inappropriate dealing when with the funda applied here. We such a “realistic rational principle mental of American that law vic guest basis” review Utah’s automobile wrongful negligent tims of acts should Lewis, statute in Malan v. 693 P.2d 661 compensated they be to the extent that (Utah 1984), and we should do so here. In have been harmed. explaining what such a realistic review Hampshire Supreme The New Court was entail, quote liberally I would from the identifying specific right correct in dissent in Fein v. Permanente Medical negligently injuries recover for caused 137, 665, Group, 38 Cal.3d 211 695 P.2d “important right.” an substantive Carson (1985), Cal.Rptr. 368 majori- which calls the Maurer, 825, 120 N.H. 424 A.2d ty abandoning to task for that standard of 830 equal protection analysis in California. importance The of this is seen not At issue in provisions Fein were of only purely compensatory from a Cali- per- spective, Injury Compensation fornia’s Medical but also as a Re- function of the (MICRA) which, among close form Act rights relation it bears to other other things, only which are fundamental. limited Not is the noneconomic compensated malpractice. for medical The ma- closely rights, jority related to fundamental upheld but of the court the limitations additionally, it logically equal protection does not fit into challenge. The rights description “commercial” dissent observed:

355 Yet, produces. limit the en- savings the rationales acceptance of majority’s The paying for this benefit is they could tire burden of speculative so broad badly in- calls at on a handful of virtually any enactment concentrated justify year the MICRA implications of than 15 jured victims—fewer tention (See in this doctrine equal protection Report was enacted. cases for MICRA 31.) Trust General, p. In Bank at Al- supra, state. American Auditor [and Los 671, Cal.3d Company Gatos-Saratoga, ^[359] P.2d 670 at Community page [ (1984) 398, Inc.], supra, 36 ] 204 (dis. Hospital Cal.Rptr. opn. though the wide latitude such a minuscule and vulnerable personal injuries, the Legislature normally enjoys distributing singling the burdens out group Bird, C.J.), majority of this joined I undemanding the most violates even “interme rejecting the notion of court of underinclusiveness. standard scrutiny. How equal protection diate” 174-75, Fein, 38 at 695 P.2d at Cal.3d ever, rejection I conditioned (Bird, C.J., 691-92, Cal.Rptr. at 394-95 past practice of grounded in the belief— this court—that dissenting). the alternative was Supreme The Idaho Court Jones v. meaningful level system two-tier Medicine, Idaho Board State (Id., at scrutiny under the lower tier. (1976), articulated a P.2d 399 has also 398-401, Cal.Rptr. 683 P.2d pp. heightened review on the standard of based 670; Superior also Hawkins v. see equal protection re- federal intermediate 607-610, (1978) Cal.3d Court view: (conc. opn. of Cal.Rptr. 586 P.2d 916 ordinary case where a In the usual and Bird, C.J.).) tested in statutory classification is particular, In I relied on Brown v. Mer equal protection, judicial the context of lo, Cal.Rptr. supra, 8 Cal.3d be, been, policy has and continues to Brown, 506 P.2d [ ]. upheld long legislation should be so this court conducted a serious sensi reasonably can be said to as its actions purposes inquiry into the nature and tive health, safety promote the and welfare guest of the automobile statute. Nevertheless, public. where the that the enact court demanded discriminatory challenged character might ment tend to serve some conceiva statutory apparent is on its classification purpose, also that each ble but patent also a face and where there bear a fair and substantial classification relationship indication of a lack of be relationship legitimate purpose. to a and the declared tween the classification 861, 106 (Id., p. Cal.Rptr. statute, purpose then a more strin 212.) guest pass statute failed to required beyond gent judicial inquiry scrutiny the classifica this level of since [y. Mary that mandated McGowen guests tion of all automobile bore 1101, land, 6 L.Ed.2d S.Ct. precise insufficiently relation to the as (1961) thread runs That common ]. purposes. example, serted For the clas through all the cases in which the was held to be overinclusive Ros sification applied this ter-Reed test has been regard purpose preventing to the Court. (Id., 877, p. collusive suits. at 106 Cal. 388, 212.) apparent was Here it is from the face of Rptr. 506 P.2d Brown Cooper discriminatory classifica- subsequently followed the Act that a 841, 148 degree supra, Cal.Rptr. on the Bray, Cal.3d tion is created based damage 582 P.2d 604 suffered as a result injury and [ ]. malpractice. Rather obvious- case, of medical applied present If in the the mode designed ly although the Act is said to be analysis Cooper used Brown and care to the $250,000 to insure continued health compel would invalidation of the other than limit, citizens of Idaho it cannot do underinclusive grossly which is advantage on doctors and hos- of healthcare confer an standard. Millions the more serious- gain pitals expense at the consumers stand to from whatever In sis has been considerable. damaged persons. As Court ly injured and equal phrased protection the test under any record we are without absence of I, 24 of the under- article Utah Constitu- to the factual basis information as Lewis, (Utah between tion Malan v. P.2d 661 lying purported correlation 1984), “First, apply must equally and the a law claimant limitation of Second, people persons within a class. care for the all promotion of health statutory and the deem it essential classifications different of Idaho. We therefore must given Act treatment the classes be based purposes of the designed a reasonable tend- relationship legislatively on differences have accomplish purposes ency objectives those to further the stat- means to (citations omitted). Citing ute.” at 670 examined. Id. must be Florida, 184, 191, McLaughlin v. 379 U.S. at 411. 555 P.2d Id. 283, 288, (1964), 13 L.Ed.2d 222 we 85 S.Ct. applied heightened Other courts agreed that courts must reach and “[t]he scrutiny equal protection standard of question determine the whether the classi- recovery rights in the limiting statutes fications in a drawn statute are reasonable malpractice area. Coburn ex medical See light purpose_” of its Id. at 673. F.Supp. 991-97 Agustín, rel. recently, in Supply Most Mountain Fuel (D.Kan.1985); Engelken, 241 Farley v. City Corp., Co. v. Salt Lake 752 P.2d (1987); Kan. (Utah 1988) (citation omitted), we Olson, 125, 132-33 Arneson v. 270 N.W.2d phrased the test as follows: test to “[The] (N.D.1978); State, Hoem v. 756 P.2d 780 applied under article section 24 is (Wyo.1988). courts have character Some subject whether the classification of those ized an intermediate their review as one at legislation is a reasonable one level, have referred to it as a and some relationship bears a reasonable to an “realistic” review under the rational basis legitimate legislative achievement of the however, in approaches, standard. Both purpose.” thoughtful volve a real and examination similarity of that test to a means-end purpose relationship be process under legislation purpose. tween the and that review the doctrine of due case, striking: “If present passed has not the laws are seen to recovery, proper leg- limited but it has also ex have a relation reasonable partial governmental immunity purpose, tended arbitrary islative and are neither rights restrict which existed at common discriminatory, requirements nor of due Therefore, apply height law. I would process are satisfied....” Nebbia v. New equal pro еned standard of under York, 505, 516, review 291 U.S. 54 S.Ct. tection. (1934); 78 L.Ed. 940 Pruneyard see also Robins, Shopping Center v. 447 U.S.

III. The Due Process Alternative 84-85, 2035, 2042-2043, 100 S.Ct. L.Ed.2d 741 parties argued this case as an protection problem. The traditional ration- overlap This surprising is not in view of however, al approach, basis takes inade- ensure, the fact that both tests seek to as a quate account the seriousness of the doctrine, matter “leg of constitutional abrogation personal rights accomplished rationally islative action ... be related to Act, straightforward and a more accomplishment legitimate of some balancing process required. That bal- Bennett, purpose.” state “Mere” Ration ancing accomplished by should be means of ‍​​‌‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​‌‌‌​‌​‌‌​‌‌‌​​‌‌‌‌​​​​‌​‍ality in Constitutional Law: Judicial Re process, a due equal protec- rather than an view and Theory, Democratic 67 Calif.L. tion, analysis.6 Rev. 1049

Historically, overlap rationality requirement between This has been protection analysis process analy- and due advanced as the most minimal of consti- opinion opposite equal protection Justice Stewart's takes the test he describes is identical to position, operation process analysis but the opinion and effect of the the due advocates. process under our consti- quirement of due legislative action. limitations tutional Const, I, art. tution. See Utah and has variously phrased § been It has guises, in several constitutional appeared I, Article section of the Utah Constitu- elaboration of prominently as an most guarantees: “[Ejvery person, for an equal protection process and the due person, property in injury done to him his guarantees. remedy by reputation, shall have due or Berry In Berry course of law....” ex rel. omitted). (footnote Id. Corp., 717 P.2d v. Beech Aircraft equal protection difficulty with (Utah 1985), that the clear we determined dissent is that analysis undertaken language is “that an implication of this what is or what it does not account for arbitrarily deprived [may] not be individual in actually going on this Court’s should be designed protect of effective remedies legislative abrogation of com- scrutiny of rights.” basic individual Characterizing of action.7 mon law causes I, purpose of Article section basic [T]he plaintiffs’ rights here as “nonfundamental” limitation on impose 11 is to some [the virtually insure that would Legislature to create new power of the constitutional under action will be found abrogate rules of and to old law ones] previously As basis standard. the rational persons of those who are the benefit out, and a pointed some commentators persons, property rep- injured in their in- incorporated an number of courts have they generally áre isolated utations since scrutiny into termediate or realistic level belong to no society, identifiable equal protection framework in order their rally group, rarely are able flexibility needed to balance to achieve the political process to their aid. I against rights. individual state interests at 676. Id. open, straightforward a more suggest that balancing degreе, open provision function un- courts

performance To process process framework is order. of the due clause. der the due is an extension Indeed, open provision courts disputes that arise under Because the over- process due clause also have an Equal Protection Clause the rubric of extent, function, lapping to some merits of have to do with the relative respect abrogation of causes of policies, judicial competing, public deci- Legislature action. If the were abol- the central issues such sions obscure injuries to all of action for ish causes they are based cases to the extent person property caused defec- one’s rationality. on discussions of a statute’s products provide no substitute tive The nature the conflict between remedy, little equivalent we have doubt political values at stake as well as the that that would violate reasoning underlying judicial bases of process perhaps the due clause of even explicit if the com- would be made more Article section 7. weighed peting public policies were out- right. ... Id. at 679.

Note, Legislative Purpose, Rationality, Indeed, two-part test articulated Protection, Yale Equal L.J. part, requires a classic Berry, at least omitted). (1972-73) (footnotes process analysis: due First, if the required section 11 is satisfied law

We are to assess reason- person an effective legislative expansion provides injured ableness of the remedy ... governmental immunity contained in sec- and reasonable alternative degree of his constitutional inter- tion 63-30-10 of intru- for vindication rights protected by provided the substi- sion on Utah Con- est. benefit substantially equal in stitution. That is the essence of the re- tute must be value binding inadequacy approach particu- the dissent’s tion is neither on this Court nor 7. A further join problem distinguish larly helpful. be- I note that I in the concur- to this its failure to ring opinion provi- portions Justice tween state and federal constitutional Zimmerman's analysis. ques- sions and Federal law on this to that effect. remedy abrogated majority the municipal, or other benefit to the of them deal with providing essentially comparable state, liability problems. sub- rather than The protection person, prop- engage stantive to one’s state asks Court to in the kind erty, reputation, although speculation legislative or the form of of about rationale remedy may “any the substitute be different. associated with the conceivable ra- However,

tional basis test.” because of the right constitutional status of the to a Second, if no there is substitute or remedy damage person to one’s under provided, abrogation remedy alternative I, required. article section more is remedy may of the or cause of action justified only if there is a clear social or A determination to interfere economic evil to be eliminated and the with, limit, abrogate availability or the existing legal remedy an elimination of person, property, remedies for arbitrary not an or unreasonable means reputation requires important an state achieving objective. implemen- interest and a rational means of greater tation. The upon the intrusion Id. at 680. interest, constitutionally protected analytic process presented Berry greater explicit and more the state’s rea- I, under article section 11 of the Utah Con- necessary legis- sons must be. It is for the “balancing stitution referred to as a was lature, first, Court, second, and this to bal- analysis.” Id. at 683. The Court examined weight ance the of the inter- legitimacy legislative purpose of the est at stake countervailing im- purpose and the extent to which said was portance rights being of the individual com- reasonably substantially by advanced promised. compared the means utilized and those rights protected “benefits” to the denial of process approach This due offers some I, opinion article degree flexibility. section identi- equal protec- Under special tion, fied a rights class of constitutional the selection of the standard of review protection which are afforded under virtually outcome, article determines the and se- Legislative attempts depends abro- lection of the standard of review gate rights closely those should be exam- in turn rigid system on rather of classifi- ined this Court and struck rights down when cation of the question. individual disability they impose seek to on indi- frequently, Most protection the level of rights great justified vidual is too to be the courts will afford the constitu- accomplished leg- benefits or when the provision depends tional on the nature of simply arbitrary imper- islation is right being substantive asserted shifting missible of collective burdens to underlying claim. If the substantive individual citizens. “fundamental,” is deemed to be statutory restrictions will be examined By (1) extending means of immunity to very closely under scrutiny the strict employees government-owned of all health test; only presence compelling of a care imposing facilities and a blanket justify state interest will the restriction cap recoveries, on all has If, or denial of access to the courts. sought respond University what the hand, the other the substantive be- Hospital attorney general in his ing asserted is not subject spe- amicus brief describe as a “financial crisis” cific protection constitutional and is liability in state insurance. No fundamental, therefore not then the ra- factual regarding alleged information provides tional basis test that access to Court, crisis has been cited to this either the courts if restricted a rational Act, legislative history of the or reasonable basis for the restriction is evidentiary below, record the court shown. reliable sources which this Court could legitimately Indeed, judicial Note, take notice. Statutorily Constitutional Law: most attorney general’s sources are Required Mediation as a Precondition to newspaper states, articles from other Courts, Lawsuit Denies Access to the legislation was to which the (footnotes pursuant Mo.L.Rev. largely was fabricated.” omitted). enacted asking plaintiff the nоted that was court uniformly- supreme courts State findings, legislature’s reconsider the it to legislation malpractice that medical held do under the rational it refused to classifications suspect create does interests.[8] Ac test. basis implicate fundamental applied has cordingly, no state court contrast, interme- In stark when the scrutiny strict applying the discussed applied, test the courts level is diate to challenges equal protection test the the basis for willing to scrutinize damage limitation laws. far to limit legislative decision in Rather, issue the cases the decisive Supreme closely. The Idaho Court more apply whether to the decision has been clearly that crisis ex- skeptical was or an intermediate the rational basis test remanded for determi- isted Idaho and the be- review. choice level of Just malpractice had claims nation whether scrutiny rational the strict tween increased insurance rates caused determinative un- tests is outcome basis damage limitation ac- the would whether protection analysis, equal der traditional tually stabilize insurance rates. the appears that the choice between Hampshire Supreme Court was un- New and the intermediate rational basis test necessary relationship find able pro- predict equal result will test goal rate re- legislative between challenges malpractice medical tection damage stat- limitation duction eight statutes. Of damages limitations “paid damage out awards ute because pro- the equal that have courts discussed part in- of total constitute small issue, applied three an interme- tection individ- premium costs few surance [and] test, applied and four the rational diate damages in ex- suffer noneconomic uals In test. one the standard chosen basis $250,000.” cess of unclear. the three courts was Of Thus, be- difference functional scrutiny, intermediate two held chose the rational basis test and tween unconstitutional and one remand- statute degree to which test is intermediate contrast, ed for more information. judgment in the reflected applied the ra- no state court that has prac- will be examined. The statute basis has tional test failed find that under the ra- tical is difference question constitutional. statute surely basis the statute will tional test Richards, Limiting Medical Mal Statutes oppo- constitutional while the befound Ins.Couns.Q. practice Damages, 32 Fed’n likely is the intermediate site result if omitted; (1982)(citations emphasis rate, applied. anyAt the crucial test is added). stan- in such cases remains which issue applicable standard of review Once ap- review the court chooses to dard of determined, damage applied it is to the ply. If the limitation statute. rational basis (citations omitted; some em Id. at 256-57 applied, generally will test is the court Farrell, added); phasis Virginia’s see also legislative judgment, re- defer Malpractice Cap the Doc Medical statute, flected classifica- Process, 23 Tort trine Substantive Due rationally legitimate related to & Ins.L.J. 684 instance, purpose. For in Fein v. state opinion Berry, clear in As was our Group, plain- Permanente Medical prepared is not to hold that Court argued that the California statute tiff 11 are rights protected in article limiting pain suffering damages in equal pro- malpractice “fundamental” in the traditional medical cases violated alleged “the ‘crisis’ tection sense. protection because State, remedy re- Mont. was fundamental and But see White (1983), scrutiny Supreme application quired governmental immunity of strict which the Montana statute. held the state constitutional Court although form always para- reputation, or of the

[Sjection rights are not remedy may mount, They sweep substitute be different.... do not all either. preroga- rights Second, other constitutional if is no or there substitute Similarly, legal remedy provided, abrogation tives before them.... alternative provide of remedies remedy may causes action of the or cause of action be may, in protect 11 interests justified only section if is a social there clear or cases, power yield to to some evil be economic to eliminated Legislature promote existing legal remedy elimination of an health, morals, safety, and welfare. or arbitrary not an unreasonable means achieving objective. for example, Legislature has

For abol- certain law remedies for ished common Id. at 680. personal injuries and other substituted Thus, right we identified the to recover pursuant Workmen’s remedies personal injuries important for as an sub Occupational Compensation Act and the right. [compen “The stantive Act. These remedies are differ- Disease personal injuries for is a substantial sated] from, ways, in some broader ent right, property monetary not value than, they law common remedies dis- many but in cases fundamental the in place. Legislature also has substi- jured person’s well-being physical and abili a for nonjudicial remedy tuted certain ty to continue to live a decent life.” Hunt by personal kinds caused Dist., High er v. North Mason School injuries sustained in acci- automobile Wash.2d dents. Utah No-Fault Automobile Berry articulated the outlines what is 1953, 31-41-1, Act, U.C.A., Insurance § essentially test, process balancing due provides seq., remedy et an insurance for the exigencies wherein associated with the special damages in lieu of a common law “social economic” evils leg addressed remedy. weighed against islation must be the rea (citation Berry, 717 P.2d at and foot personal upon sonableness its intrusion omitted). employ- private tort- allegedly negligent as victims of entity and the the same status 517, State, however, 520 cap, P.2d recovery 613 Frank v. With the ee. See feasors. 1980). under this (Utah Tort victims in retracted the legislature has effect the right from the to recover received scheme seriously for in- of the waiver of up to maximum care a entities health directly prohibits those The jured. statute of $100,000, regardless of seriousness recovering compensa- from injured are who burden of injuries. The victims’ their solely injuries because proven for recovery precondition to showing fault as a by injuries have inflicted been those changed.9 was providers. care government health $100,- to sustain prepared we were If argue essentially that Defendants limitation, con- be recovery we would 000 care cannot af- government health entities statutory pro- that to conclude this strained they injuries pay ford to for serious reme- adequate fails substitution vision may therefore cause and that the state Berry. of the test dy portion compensate fully to those whose choose limitation, how- of absence injuries minor but make what be are a ever, question would become much payments inju- severe token to those with tort victim under those closer one. The plaintiffs of these ries. circumstances circumstances, losing right to re- while illustrative; unlikely that the re- it is government employee, cover pay more than a covery amount would limit right to from the retain the recover would medical ex- plaintiffs’ fraction actual of entity negligence of its government leaving nothing to offset the ex- penses, is no to believe employee. There reason Thus, the of care. burden penses lifetime employees health care that individual of protect the legislative attempt of employers than entities are more able their exclusively on treasury falls those state respond damages or the entities protection. of financial most need likely to be judgment-proof. themselves are context, a analytic In a substan related no It would seem to make difference addressing damages courts majority tial total employee unless the amount recov- malpractice limits in statutes medical by the For ery is affected statute. limits, usually those invalidated reason, it the extent appears occasionally also protection grounds, but brings care en- that section 63-30-3 health See, e.g., process (not under due rubric. Co engaged governmen- tities essential 627 activities) Agustín, ex v. purview burn rel. Coburn tal within (D.Kan.1985); 983, Waggoner recovery F.Supp. statutes it is chal- limits 997 1102, (N.D. lenged plaintiffs. Gibson, F.Supp. The determina- 1107 these 647 v. question therefore the re- Tex.1986); Page tive whether Du Wright v. Central cap regarded covery reason- Ass’n, 313, 329-30, can Hosp. 63 Ill.2d 347 able, limitation nonarbitrary on the 736, (1976); Malprac Kansas N.E.2d 743 in a context recover tortious 333, Bell, 757 243 Kan. tice Victims v. where common law has 241 (1988); v. Kan. Farley Engelken, 251 restricted. been 663, 678, 1058, (1987); 740 P.2d 1068 Car 936, Maurer, 925, 424 A.2d son v. N.H. $100,000, damage limit With a 825, Olson, (1980); Arneson v. the cost has determined that (N.D.1978); N.W.2d Simon St. protecting public treasury shall be Center, Op.3d 3 Ohio Medical Elizabeth persons seriously those few most borne (Ohio 166-167, 906-07 355 N.E.2d negligence government injured Misc.1976) (dictum); Baptist Hosp. employees. care health entities their Baber, Texas, Having expanded immunity first Inc. v. S.W.2d then Southeast Act, contrast, By requirement Utah the fault was elimi- Utah No-Fault Automobile Insurance Act, Compensation Workers’ nated Utah’s Code §Ann. 31A-22-309 (1988), Code § Utah Ann. 35-1-107 ” (Tex.1984); Note, Depart privileges.’ mation of new Smith cf. Califor (Fla. Insurance, ment 507 So.2d 1080 Compensation Injury nia’s Medical Re 1987); Medicine, v. State Bd. Jones Equal An Act: Protection Chal form 399, 416, Idaho cert. lenge, 52 So.Cal.L.Rev. n. 623 deniеd, 431 U.S. 97 S.Ct. 53 (1979) (quoting Bernzweig, forward to T. (1976) (remanding L.Ed.2d 223 for factual Jr., Lombardi, Malpractice Medical Insur on whether medical determination mal ance, (1978)). existed); practice crisis actual Lucas v. harsh, unfair, impact and irrational States, (Tex.1988); 757 S.W.2d 687 United of of immunity the doctrine State, (Wyo.1988). Hoem 756 P.2d 780 courts, historically legisla- has led then and Hosp., But see Johnson v. Vincent St. tures, respond governments by making Inc., 273 Ind. 404 N.E.2d readily more the accountable for costs of (1980)(upholding limitations where there is governing: partial remedy). a alternative liability Even where would not be an The kind of “crisis” intervention which deterrence, question unwanted the re- passage the malprac motivated of medical mains of the extent to it is which desir- damages tice strongly limits resembles the compensate public able to out of funds by upon “crisis rationale” relied the state injured by those government what does justify in on damages this case limits in public in the interest. The older view governmental immunity cases.10 The focus chose to sacrifice the individual claim increasing on premiums insurance altogether, except within the narrow con- (like argument governments phy some taking fines of a in property the con- sicians) be “out will of business” absent sense. stitutional But the whole trend of legislative strikingly intervention are sim thinking modern is compensating toward always ilar. It must be borne mind that enterprise the victims of distributing and the has here chosen both to their losses. Even conservatives would expand governmental immunity protection do innocent, this where the is victim beyond scope its at common law and to injury where already his is of a kind draw limits which affect a few victims recognized private law, after a tort and where blanket waiver conducting there crisis,” certain kinds of is fault the negligence. “A enter- political prise. government scientist Paul The device of noted, liability Starr has “ truly ‘can machinery offers compensation marvelous mechanism for both the withdrawal or suspension distribution; and it estab should be used to rights, lished and the acquisition and legiti compensate government the victims of at following commentary 10. The rights describes what produce is the of victims will the meant crisis rationale in this context: legislatures. benefits envisioned More- over, premise is based on erroneous malpractice The medical crisis is neither a assumption rights that the exercise of victims’ unique rather, phenomenon; nor an isolated liability is the exclusive cause of the insurance crisis-legislation it is one the series of se- crisis. quences which threaten to erode the estab- system lished of tort law. The most contem- legislation Crisis porary neither new nor a of these municipal crises concerns lia- necessarily bility uninsurability undesirable feature of the Ameri- municipal and cor- legal fact, political process. can porations. and may very crisis, malpractice ability As well demonstrate medical quickly decisively to act those affected nicipal liability in the current dilemma face of in mu- social, economic, political prob- serious system identified the tort are, however, problem. as the prem- legit- root A lems. There two-fold serious and ise associated with potential these crises is that imate concerns over the use and the fault system, lies in the tort abuse of such drastic limitations on measures. Note, rights necessary Target victims are in order to Law Tort Defendants Reform: problem. more, Perspective alleviate accept- Without A on Malpractice Medical and. Mu premise requires ance of this leap nicipal Liability, 11 Vt.L.Rev. of faith (footnotes omitted); Nader, because the means-end connection is essen- see also The Assault tially unsupported. premise Injured fails Rights, because Victims’ 64 Den.U.L.Rev. 625 guaranteed likely it is neither nor that limit- expense conserve those monies at princi- the fault full extent of least to the citizens, citizens are seriously injured its where there except in situations ple policy for showing in the courts that a reasons of extrinsic entitled to a cogent compensation.... withholding arbitrary as a measure so drastic [WJhere injury kind of represent the claims $100,000 urgently such cap on all recognize espe- conventionally courts overwhelmingly necessary. — magni- injury ...— their cially physical do not hold that state We injury simply reflects the size tude govern by avoiding preserve ability its increasing- perhaps large-scale and catastrophic If the payments for losses. government dangerous activity by ly entity, solvency public such as actual citizens. It would may inflict on its threatened, state, is the balance obvi picture only when change the essential ously might in favor of the collective shift crushing that it re- so was continuity public interest of the so- flected wholesale destruction Furthermore, the eco view of services. spell would way in a cial wealth might question, nomic uncertainties liability. any system of for breakdown believe, reasonable, we for the James, Liability Governmental Tort approximate upon justify settle and to Officers, Their U.Chi.L.Rev. Units and enough figure large to be demonstrated omitted). (1955) (footnotes (minor majority injuries compensate a gone so far as commentators have Some serious) large but not so as to threaten of sov argue that “the naked existence insolvency response to one or ensure equal pro ereign immunity constitutes an major catastrophe. Over judgment or a distinguish by irrationally tection violation Al twenty years ago, Professor Arvo Van private and sover ing victims of between styne, comprehensive essay Govern his negligence.” Murray Murray, & eign A Decade Liability: mental Tort Sovereign Immu Unconstitutionality (1966), Change, 1966 Univ.Ill.L.Forum 919 Illegit nity in Ohio—Last Stand for balancing process that is anticipated the King, imate 18 U.Tol.L.Rev. necessary: (1986).11 I extreme do not advocate this approach the validi- The fiscal assumes Court, however, ought not position. This fears, ty of the often articulated expansion retention or defer to entities, full spokesmen public for that governmental immunity which unreason in- responsibility entails the risk of tort ably important burdens constitutional tax solvency, or at least intolerable rights. recovery limitation in the Utah burdens, major catas- in the еvent that a Immunity Act on all dam Governmental By trophe liability. becomes basis by government-owned ages caused health essentially providing specific, ar- albeit providers employees such care and their ac- bitrary, planning for fiscal basis an unreasonable burden. There is no fac coverage, dollar quisition of insurance showing legislative history tual calamitously high limits the risk of avoid trial court that the limitation judgments. reasonably necessary preservation of for equal jus- Unfortunately, the ideal of true, course, public treasury. It is price pays high tice for this contem- there will be less cost to the state and that plated security; it seems obvious fiscal if readily insurance will be more obtainable instances will arise respond the state does not have to in dam damages will bear $100,000 maximum allowable ages in excess of for relationship actual no rational to the by its health entities and em caused care sustained, damages equally deserv- damages. those ployees or insure However, permitted ing grossly dispro- before the state is claimants will receive comment, however, policy acknowledges compensation" decisions, “composed 11. Even this that is necessary of true necessity govern without for a "residuum” of "to both counterparts.” Murray Murray, satisfy countervailing separa- private interests of the & harm, powers, tion of deterrence of and victim Indeed, the necessar- tions. We also portionate awards. believe that the balance ily discriminatory consequences of statu- legislature ignores goal struck limits, tory damage under which some of deterrence: employees injured by public individuals negligence The association of with favorably less than others will be treated purely compensatory has reasons, suggests purely fortuitous prompted impression erroneous possible difficulties.... constitutional negligence solely is intended Moreover, legis- experience suggests compensation. as a device for Its eco- developments lative in other states con- different; nomic function is it is to deter ways for adequate firm that alternative happens, uneconomical accidents. As it resolving catastrophe judgment prob- produc- amount of deterrence is available, readily equal jus- lem are by compelling negligent injurers ed stability tice and fiscal need not be an-' good make the victim’s losses. Were event, tagonistic objectives. they pay (punitive forced to more dam- suggested sharpest is in rationale focus ages), some economical might accidents respect to small entities of deterred; they also be permitted were resources; yet, paradoxical- limited fiscal pay compensation, less than some uneco- ly, in each of the states which have nomical accidents would not be deterred. adopted limits, damage the statutes do- It is thus essential that the defendant be fully very applicable so are to the pay damages made to they and that largest public рossessing the entities plaintiff’s loss. But that the capabilities broadest fiscal for risk distri- damages is, paid plaintiff bution. standpoint, from an economic a detail. (footnotes omitted); Id. at 971-72 see also Posner, R. Analysis Law, Economic Spader, Immunity Liability and 6.12, (1972) (footnote omitted). at 143 § Clash Fundamental Values: Ancient Although deterrence-related concerns Mysteries Crying Understanding, out for problematic have been seen as ap- when L.Rev. 61 Chi.[-]Kent plied against government entities, they view, In my section 63-30-3 and the re- traditionally been viewed as central to statutes, covery operating conjunc- limits in influencing profes- the behavior of medical tion, are unconstitutional. That view is sionals. by concurred in Justice Zimmerman. Jus- Underlying public policy goals per- tice concurring opinion, although Stewart’s ceptions determine the balance between agrees analysis with this of the interac- compensation and deterrence for statutes, tion of the opts two to strike type negligence liability. This balance damage down cap provision, leav- differs, is a variable which depending on ing section 63-30-3 intact. I think it would particular activity activity or class of preferable statutes, be to strike both leav- concerned. free to restructure the immunity statutes as it sees fit. Many courts and commentators have

V. Tort Liability and Deterrence puzzled why over such an anachronistic unsupported and concept approach by governmen- The taken the state in this tal case was so rights focuses on victims’ difficult to compen- to dissolve. (or part The answer public answer), sation and the of the per- benefits to ac- quired haps through lies in what rights. limitations of those seems to anbe identifi- able, already We have policy indicated that the restric- undercurrent which $100,000 suggests tions in governmental embodied that entities are cap are an unjustified intrusion on constitu- less need of deterrent incentives than tionally protected rights substantive are other classes of tortfeasors. This is compensation because, for negligently inju- inflicted while providers health care and ries caused providers health care private not other sector operate actors in es- performing governmental essential func- sentially an marketplace, gov- economic rights tions on or remedies can more political in a operate bodies ernmental such, judg- accurately measured. adverse marketplace. As process serve through the tort ments Note, Target and Tort Re Defendants role important deterrent direct more 11 Vt.L.Rev. at 566. form, decision-making than in sector private Right Recovery VI. Limitation and public sector.

Jury Trial

to a governmental accepted that If it can be Harvester Credit International of a no need immunity persisted because Implement, Corp. v. Tractor and Pioneer policy, it is easier under- deter then (Utah 1981), Inc., this Court 626 P.2d 418 compensate, why obligation stand jury that trial in civil held itself, causing a so shift was slow guaranteed by article cases societal indi- in the balanсe between arbitrary An of the Utah Constitution. hand, interests. the other vidual On my juries, limit on awarded long recognized need has been a there view, infringes upon right: seriously among profes- tort law deterrence historically has an inte- jury been among health care generally, sionals legal gral part Anglo-American specifically. providers require system. the clearest It would Note, Tort Target Law Defendants language sustain the conclusion (footnotes 11 Vt.L.Rev. at 567-68

Reform, insti- there intention abolish an was an omitted). dem- deeply tution so rooted our basic problem with Governmental Utah’s important so in the ocratic traditions and Immunity Act is it has created limited justice, only as a administration of under screen state the sover- between the buffer immunity for which were tradi- activities state, eign also as a citizens of the but tionally subject to the deterrent effects of rendering justice citi- means for between Furthermore, liability. notwithstand- tort give zens. refuse to a strained We government-owned the fact that is a meaning of our to the terms Constitution facility, University Hospi- care the health dispensing in with an which would result tal, patient programs, virtually in its care the institution has the sanction of that sector, private competing in the operates centuries. entities, private, nonprofit other as Harvester, 626 P.2d at 420. International for-profit hospitals. as with the well case, Boyd A recent district court federal service, patient it is not in the area of Bulala, (W.D.Va.1987), F.Supp. 915 establishing government poli- of business ruling as matter of contains a similar reason, cy.12 For that the common law diversity in law a ac federal constitutional exception prevent existed to malpractice. court’s tion for medical malpractice barring medical the the sev opinion history summarized Utah, reason, in that actions and for the “This nec enth amendment and concluded: balancing analysis factor in deterrence the essarily history of the sev foreshortened in apply weighs should favor of this Court right thus reveals that the amendment enth liability, not limitation. as jury to a civil trial was intended to serve balance, in In this the interest important upon cheek the limiting rights weighed victims’ must be judiciary.” the Id. at 919. The court and compen- interest in against the individual Virginia containing re examined statute accruing as sation as well the benefits malpractice covery caps cases: in medical society through general the a safer de- By limiting recovery way, in the negligent terrence of harmful or conduct. substantially the role statute diminishes scope When the full of consideration is determining damages, given, legitimacy jury the of various limita- of the in Eikenberry, wrong Litigation Tort that a tort action for dam- 12. See Governmental with the idea Power, way setting ages appropriate estab- Balance is an and the 742, 45 Pub.Admin.Rev. lishing governmental policy.”). ("Something fundamentally is this, such as damages is I also that

least in cases where absolute. believe amount (cid:127)proven damages exceed the absurdly amount in the low contained far cap. analysis egre- must infringes limits statutes Constitutional seventh giously right. pro- on whether the Under therefore focus that the due guarantees balancing analysis parts amendment determina- set in cess forth bearing in any jury, above, tion of III IV I and would hold that Supreme admoni- mind that Court’s govern- in limitation actions jury “[mjaintenance as a per tion that of the se invalid because of the ment was body importance fact-finding is of such infringement right jury of the trial. place firm our occupies so histo- However, in the case limitation which ry jurisprudence any seeming unlikely its face to cover is on even right jury curtailment of to a trial expenses plaintiffs, in the medical utmost should be scrutinized with the state absence evidence from the care.” limitation, justifying arbitrary I such an strike the added) would balance favor of 672 F.Supp. (emphasis at 919-20 Schiedt, guarantee jury constitutional Dimick v. (quoting trial rather U.S. 296, 301, (1935); than the statute. 55 S.Ct. 79 L.Ed. 603 Malpractice see also Kansas Victims

Bell, Conclusion VII. 243 Kan. Only part foregoing analysis has

Noting that the treatment of additur in by been concurred Justices Zimmerman remittitur the seventh Stewart, under amendment explained separate as their of dam- determination opinions. Accordingly, holding “confirm[s] ages part of the ‘substance of the com- following: is limited Court the recov- ” (quoting mon law trial jury’ ery limits statutes are unconstitutional Battin, Colgrove v. 149, 157, U.S. applied Hospital. to University The trial (1973)), S.Ct. 37 L.Ed.2d 522 reversed, order court’s and this case is Boyd court further observed: proceedings remanded for further consist- holding.

It ent with this Virginia is true that General As- sembly may constitutionally abolish a ZIMMERMAN, (concurring Justice action, attaching

cause of Part): jury follow, to a trial.... It does not however, legislature may con- join, principle, I III parts and IV of the strict right jury the to a in the trial opinion of Justice Durham. I elab- write to common-law actions which are retained. my process view on due I orate the issue. contrary, To the the seventh amendment express opinion no the points on other dis- by commands the jury that to trial in opinion. cussed her preserved.” “shall legislature The Berry, firmly In this Court itself staked cannot, guise in of shaping the and delin- finding protections out in as substantive eating action, the cause of diminish this I, guarantee “every article section ll’s to right. “remedy person” of a due course of Likewise, the Commonwealth not for “an injury law” done to him in her] [or invoke the of purpose justi- to statute person, property reputa his her] [or fy province invading jury.... of the Today’s logical tion.” is a decision succes Though power has broad Berry. true, sor to It is as Justice Durham regulate to affecting matters notes, in Berry we chose de not to welfare, may health and infringe not I, scribe “fundamental” article section party’s right a to by jury trial in a guarantee. 360; Berry ex op. Maj. ll’s at federal court. Berry Corp., rel. v. Beech Aircraft Boyd, F.Supp. at 921. Const, (Utah 1985); P.2d Utah art. I I, believe that the Utah However, state constitution- declining in to so char § al to jury question trial on the of guarantee civil remedy inju- acterize of given present case has me better The to deni ríes, we intended I do not think including protect of rights appreciation of the wisdom of the importance grate I, I, guarantee articlе in legislative abridgment section ll’s Utah’s from article ed Instead, simply avoided be we The constitution’s drafters section basic charter. analytical straitjacket into the political pro- bound the normal understood that of federal has been fashioned out always protect com- would not cesses “fundamental” protection clause for equal all rights of citizens obtain law mon construc tempting parallel rights and the Berry, 717 P.2d injuries. remedies for See uniform-op Constitution’s Utah 676; Law: Developments in the cf. Const, provision. U.S. eration-of-the-laws Interpretation Constitutional State of Const, I, 24; XIV, 1; art. Utah amend. § § 95 Harv.L.Rev. 1498-1502 Rights, Abortion, Garfield, Privacy, and Judi cf. political- (protection majority of by the Ghost Review: Haunted cial of ly approach as an powerful minorities 293, 345-46, Lochner, 61 Wash.L.Rev. Note, interpretation); constitutional state develop (1986) (reviewing the historical Due Process: State Economic Substantive dependent rigid analysis of forms ment A Yale L.J. Proposed Approach, 88 fun rights classification of as either on the (1979) (perfunctory judicial is review fundamental); Note, Lack damental against special inadequate protect inter- Delays Equality in Court Statewide time, legislation). any At est one Protection, Equal Held Not Denial of citizenry will have percentage small (advocating use of 1967 Utah L.Rev. recently been harmed and therefore will rights” straitjacket as a “fundamental remedy to obtain a from the members need equal protection violation means find any particular defendant class. uniformity in court in a lack statewide majority populace will have no vast fact, why I see reason delay). little efforts to opposing interest test the con analytical framework used to protect class because the such defendant I, stitutionality legislation under article readily identify will not with those majority (or rigid ape must two- enough to have persons unlucky been few three-) analysis level of the federal persons directly few harmed. And those See, protection e.g., cases. Mountain Fuel will, likelihood, the polit- in all lack affected Supply City Corp., Co. v. Lake Salt legis- power prevent passage ical (Utah 1988). On this that, essence, requires every mem- lation point, appear and I Justice Stewart citizenry injured ber of the who mem- agreement. But there is no reason to con of the defendant class to some or bers bear great today sider that issue detail be injuries. those all of the cost of properly analyzed cause case under Admittedly, majority the interests of a process balancing approach the due applicable populace commonly overridden Berry indicated is when consid indeed, and, ering questions.1 legislative process, section 11 such article pains agree is at to renounce 1. I cannot with the Chief Justice that due Justice Stewart balancing process-type analysis inappropriate process,” appar is suggestion of "substantive due certainly have raised the article here. Plaintiffs I, seeing balancing ently approach spectre the in a by arguing in this case that section 11 issue Supreme jurispru a discredited era in Court of legislation infringes rights protected by that the See, unjustified. e.g., This is dence. concern plaintiffs may. phrased provision. While have Abortion, Garfield, Privacy, and Judicial Review: portions argument of some equal protection terms Lochner, by 61 Wash.L. Haunted the Ghost of concepts, certainly we are Note, (1986); Rev. 293 State Economic Substan analyzing Berry limited to so the issue. teaches Proposed Approach, Due A 88 Yale tive Process: precisely process concepts, that it is due rather (1979). any there that L.J. 1487 If doubt equal'protection, than those that are involved concepts equal protection be and are used can I, rights by protected when article section 11 are essentially produce the the same results on abridged. at claimed have been straight-forward grounds as a more due same Therefore, appropriate it is for us to 675-81. analysis, process those should be dis doubts process analytical use due ing methods when treat- by pelled comparing separate Justice Stewart’s claims, approach parties such whatever the opinion with mine. may have the taken to issues. overriding may respon- general, explained be essential to the lation in the Court operation representative legislation sible of a delibera- impairing rights specifically pro- However, body. very tive the act of draft- tected the federal constitution would ours, ing a constitution such as which does review); require more careful Pfost power legisla- unlimited on not bestow the State, 206, 217-20, 495, 219 Mont. 713 P.2d rights ture and does certain which reserve (1985)(open provision courts makes people, recognition to the constitutes a right to seek tort remedies a “funda- legisla- there must be some limits on the purposes equal pro- mental interest” for ture, people that some interests of the de- analysis); Faler, tection Ernest v. 237 Kan. special protection serve in the maelstrom of 870, (1985) (“[T]he group politics legislative interest that is the person injured by the tortious act process. Among the interests to which the remedy injuries another to a for his assigned Utah Constitution’s drafters a de- rights.”); one of the basic constitutional gree sanctity are those mentioned see also Estabrook v. American Hoist & I, article section 11. Derrick, Inc., 127 N.H. 498 A.2d rights (1985), To accord these respect part overruled in on other requires drafters intended ap- grounds, Products, Inc., that we Young v. Prevue proach challenges legislation alleged N.H. 534 A.2d infringe I, article 11 differently suggest I do not that we should strike than we otherwise view claims of unconsti- legislation down such if a less restric- tutionality ordinary that are directed at conceivable, tive alternative is might legislation. ‍​​‌‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​‌‌‌​‌​‌‌​‌‌‌​​‌‌‌‌​​​​‌​‍economic Because the inter- required by rights” equal a “fundamental specifically protected ests at stake are by protection Rather, analysis. agree I with constitution, presumption of validi- approаch in Berry weighing taken ty normally attaches to ac- particular infringement I, on the article tion must be reversed once it is shown that section 11 interests at issue does, fact, the enactment under scrutiny justifications offered for the restriction. infringe upon the interests enumerated in Berry, 717 P.2d at 683. This bal- I, article section 11. The burden then is ancing process may not be as apparently upon proponents legislation’s precise neat and rigid equal as the protec- validity to demonstrate that its restrictions tion classification tests that developed rights those are carefully drawn and constitution, under the federal but is an supported by weighty considerations. Cf. approach better recognize calculated to Note, supra, 88 Yale (pro- L.J. at 1501-10 realities that a must face in posing a method of requiring review attempting to deal perceived social legislation’s proponent to articulate the problems. and economic by legislation ends served and to bear the Returning present case, there can proof burden of of the nexus between question be no legislation issue, that the ends). means and in weighing And severely proffers restricts the legislation’s every defenders, we citizen to recover even out-of-pocket should not use actual analytical as our model the losses, permissive both from category a narrow perfunctory standard of providers health care reasonable relation who are the appel- advocated actual lees malefactors and Instead, from their dissenters. we give employer, legislation substantially should justifica- infringes upon and its scrutiny tions careful those specifically protected to assure interests that re- ar- legally cognizable dress of ticle section 11. Berry, is not See 111 P.2d at unreasonably impaired. Cf, reason, 676 & n. 3. e.g., For that United burden of Co., States v. Carotene demonstrating Products 304 U.S. the constitutionality of the 152 n. 58 S.Ct. 783 n. statute proponents. shifts to its sup- (1938) (while L.Ed. 1234 adopting per- porters of legislation have not carried functory standard of review under the fed- their justifications burden. The advanced process eral due clause for regu- economic legislature’s for the having abridged the view, 24 of the my Article even In of citizens to recover important right Constitution, protec equal the Utah by injuries Utah out-of-pocket losses occasioned because, dispositive unlike provision, of is category in tion persons a narrow to their law, protection law al equal federal Utah of a narrow for the benefit circumstances in greater protection to extraordinarily lows individuals category of defendants are Lewis, type. of fact, argument cases Malan In at both oral weak. 1984). (Utah lawyer for the P.2d 661 attorney general admitted hospital physicians involved and agree Durham I with Justice they evidence that empirical had no unconstitutional, damages but limitation is damage have threatened awards Utah Hospi to only applied University as government and any unit of stability However, agree I her do not with tal. the legislation to that the cоncerns that led First, no legal analysis. I see reason what on anecdotal evidence. were based analysis, rely process Cf. to on a due soever (rejecting Pfost, 713 P.2d Furthermore, since has not been raised. attempt justify legislature’s to Montana view, contrary her there and are real cap tort speculative findings a on the pro important equal differences between entities). government open the Utah clause tection and courts analyses, they are different from a due joining, parts In III and IV principle, process analysis. Berry rel. v. See ex opinion, Durham’s I wish of Justice (Utah Corp., 717 P.2d 670 Beech may con- any implication opinion her avoid Aircraft 1985). process, equal Telescoping the due caps damages lacking any that flat tain open as protection, analyses, courts general differentiation between actual and do, Justices Durham and Zimmerman blurs damages punitive may be constitutional. or important analytical concepts intended view, deprived my people when the are give different substance and effect to each out-of-pocket of a to recover actual provision policies constitutional in- expenditures that or have been will be designed is Zimmer each serve. Justice curred because of the tortious conduct recognize essentially man fails that it is another, infringement upon right to protec equality law that before person recover for harm to the far more further, principles and not the rational requires justification severe and far more ity legislative such. ends and means as general damages pain than when suffering punitive damages restrict- that, I Beyond application all believe ed. process analysis of a due substantive inappropriate. The era of federal substan- STEWART, (Separate Justice essentially shortly process tive due ended Opinion): York, after v. New 291 U.S. Nebbia L.Ed. That S.Ct. era only issues, raise Plaintiffs two and both high ill-fat- stands as the water mark of an equal protection provisions arise under the and, believe, illegitimate ed I exercise of of the United States and Utah constitu- judicial power the realm issues tions. Those are: put power. strongly oppose any I effort to Legislature’s abrogation Does the variety this Court on that track for a negli- the common law of action for reasons, including my separation view gence against employees govern- Although powers. process substantive due mentally facility owned care vio- health wholly has not been abandoned some provisions late guarantee- constitutional states, including Utah, large it has ing equal protection under the law? employed been in cases of extreme damage provision 2. Does the limitation arbitrariness, and this is such a case. Act, of the Utah Governmental applied governmentally Finally, agree when to a essentially owned I with Chief facility, equal pro- opinion health care violate Justice Hall’s as far federal law However, provisions tection of thе Utah United I he de- is concerned. believe provision States Constitution? cides the limitation contrary analytical duty. a.m., manner to the frame- pre- At 8:05 Condemarin was Lewis, adopted work in Malan v. 693 P.2d pared emergency for an caesarean section (Utah 1984). example, presume For fetal because monitors indicated that constitutionality of a statute when the baby being deprived oxygen. was Some deprives statute one of a established later, plaintiff minutes Leonel Condemarin I, by Article section 11 of the state consti- was born. give any greater tution is weight to fail to Attending physicians concluded that he to a constitutional than to a noncon- had suffered fetal and distress was severe- interest, general such a stitutional as social ly asphyxiated at asphyxia birth. The re- Furthermore, or economic interest. it is neurological damage sulted in including im- plain applies higher that Malan a standard pairments hearing sight, and seizure dis- of review than the minimal standard that order, spasticity. Leonel’s current applies. the Chief Justice physician concluded that the child will have sum, I damage conclude that the limi- span a normal life severely as a retarded tation in Utah Code Ann. 63-30-341 on § handicapped physician individual.' The applied tort University as further concluded physical that Leonel’s Hospital However, is unconstitutional. and mental defects are related to the as- against ban on government employ- suits phyxia at birth. is, ees in capacities their individual my action, Plaintiffs alleging -initiated this view, constitutional. I reach these conclu- negligent by treatment the medical staff at sions on the basis of Article section 24 of University Hospital. Constitution, Each individual the Utah equal pro- the Utah defendant employee was an of the Univer- provision. tection

sity Hospital or the University of Utah. I. THE FACTS against Larkin, The action Dr. R.M. attending physician in obstetrics at Condemarin, Crelia plaintiff appel- time, has been dismissed. Plaintiffs moved lant, entered Hospital Cottonwood during summary for judgment in the trial court early morning May hours of seeking portions to have of the Utah Gov- after several hours of labor. Indications of ernmental Act declared unconsti- potential high-risk a delivery, including a tutional. The motion by was denied previous caesarean delivery, premature judge, trial granted peti- this Court a rupture, membrane suspected prema- interlocutory for an appeal. turity, treating led her physician at Cotton- quickly wood to transfer her to the Univer- sity Hospital in City, Salt Lake where she II. LIMITATION OF DAMAGES

was admitted at 5:45 a.m. the resident duty on unit, in the obstetrical Gayle Dr. The first I issue address is the constitu- Condemarin, Carter. spoke who Eng- tionality no of the limitation damages lish, was intermittently monitored for the be awarded a governmentally couple next hospital’s hours medi- owned hospital for which immunity has a.m., cal staff. At 7:00 Carter went off been waived.2 Sovereign immunity, the arose, 1. At the event, time this lawsuit analysis, Utah any Code Ann. is the same under either $100,000 imposed § 63-30-29 predecessor. a current statute limita- or its tion on the govern- amount recoverable from a 2. Utah (Supp.1988) pro- Code Ann. § 63-30-34 63-30-34, entity. mental Section in effect at vides: time, required a trial court to reduce a (1) Except provided (3), in Subsection if judgment against governmental entity in ex- judgment personal injury cess of the limitation to the amount of the against governmental entity, employee or an policy limitation or the limit of insurance se- whom entity duty has a entity, cured greater. whichever was $250,000 indemnify, person ‘exceeds for one provisions repealed These were in 1983 and occurrence, any $500,000 one for two or replaced by provision the current set forth in persons occurrence, more one convenience, footnote For I refer infra. judgment court shall amount, reduce the to that throughout opinion. § 63-30-34 My regardless of whether or not Subsequently, proprietary a function. cannot sued was the state be principle that specifi- consent, Legislature a amended 63-30-3 its was without its own courts § exempt liability governmen- from cally to of American common principle well-settled homes, hospitals, and tally nursing a v. owned became state. Madsen law when Utah 1983). (Utah health care facilities.4 other such Borthick, P.2d Govern- In enacted Utah Utah decided In this Court Standiford -38, Act, to Immunity 63-30-1 mental § (Utah Corp., P.2d 1230 City Salt Lake re- the harsh which intended limit was 1980), provided analysis a new for which sovereign immunity, a produced by sults governmental immunity deciding when despite continued to exist doctrine that has governmental applied to a activi should be concept The strong central criticism. ty. proprie The Court observed that the “ exist is that should doctrine tary-governmental distinction is ‘one inte- governmental for activities that are unsatisfactory known to the most ” process they gral governing so that Davis, (quoting law.’ Id. at Admin jeopardized. will not be Law, Liability of Ch. “Tort istrative Officers,” 179). and of Governments Greenhalgh Payson City, concluded that reliance on the The Court (Utah 1975),this Court held that munic- proprietary-governmental function distinc maintenance, ipal ownership, operation central the courts from the diverted proprietary activity, and hospital was a “namely, governmen a whether “governmental not a function” under concern— private tal enti entity, like individuals and 63-30-3 of the Governmental § ties, inflicted injury should be liable for an read, city Act as it then that the was policy. as a matter of Id. at 1234. it” in- negligent for immune jury.3 The stated: Court following test formulated the Standiford primary A to be is im- determining governmental [factor considered] for whether activity something is which

whether activity un- munity applies: “whether the public general good is done for na- unique der is of such a consideration generally regarded public which is as a by a performed it can ture that Coupled this, responsibility. other with agency or essential governmental that it is is matters considered whether there governmental activity.” Id. core of any City; special pecuniary benefit to the By restricting at 1236-37. somewhat also, it is nature of such a whether governmental immunity, the test scope of competition as free enter- to be with intent to allow implemented prise. by tortious injured “mоre innocent victims (footnote omitted). public access part on the entities 530 P.2d at 801 conduct 1237. fact Id. at Court focused on the that since the the courts redress.” that, others, test the core hospital competed operation Beyond articulates its may giving injury Except provided in this rise to the character- as otherwise function act, governmental. governmental ized as shall be immune all entities (3), (2) Except provided in any may as Subsection if injury result from suit for which property damage against judgment wherein from the activities said entities governmental entity, employee or whom engaged entity in the exercise said governmental entity indemnify, duty has a discharge governmental function. 100,000 occurrence, one $ exceeds judgment court shall reduce to that currently part: reads in Section 63-30-3 amount, regardless of whether or not Except provided in this be otherwise damage giving rise is charac- function governmental chapter, all are immune entities governmental. terized as any injury results from from suit for damage limits in this established function, gov- exercise of a apply do not awarded as home, nursing ernmentally-owned hospital, governmental entity compensation when a facility, governmental health care or other damaged private property has taken or with- medical, nursing, approved and from an just compensation. out professional clinical train- other health care Greenhalgh, program either At conducted in the time of the decision in private facilities. § 63-30-3 read: Thus, emerges protected by governmental immuni- the issue that is whether value I, trea- ty providing protection Legislature ran afoul of Article sec- — against overwhelm- sury Rights and tax revenues of the Declaration of of the the essential functions of losses so that by limiting Utah Constitution government imperiled. not The test will be government of an institution owned also identifies where the constitutional performs nongovernmental which activi- right person remedy of a to have a for I, states, ties. Article section 24 “All laws I, personal injury begins under Article sec- general nature shall have uniform tion 11 of the Utah Constitution as operation.” every person It extends to governmental agency, gov- a and where the right enjoy equal protection of the right from such ernmental purpose provision, The law. that- as stops. lawsuits Lewis, explained in Malan “persons similarly is to assure that operation University Hospital of the similarly, situated should treated governmental be is not a function the con- sense, persons in although governmental stitutional different circumstances should operation community hospitals of some as if their be treated circumstances might, view, my governmental be a func- persons were the same.” “When are sim- hospitals tion. There are a situated, number ilarly it is unconstitutional to sin- area, the Salt Lake some which are gle person group out one persons tertiary hospitals, compete care that among larger from class on the basis of a University Hospital. The activities justification tenuous that has little or no hospitals perform be, such need not and are merit.” at 671. Id. not, performed only by governmental step I, in applying first Article sec- agency; though hospi- that is true even tion 24 appropriate determine the teaching hospital. tal Privately owned evaluating standard of review the law- hospitals perform teaching also functions. discriminatory fulness of the classifica- State, (Utah Frank v. 613 P.2d 517 tions. all Not such classifications are un- 1980), require does not a different conclu- Malan, constitutional. apply we did not University Hospital sion. It held that the applied the three-tier test under federal performed governmental function for law, equal protection but didwe indicate purposes determining applicability of the that the approach strictness of our would Immunity Act. The Court reached that vary with the nature right or inter- by looking conclusion to the amendment to against. est discriminated 693 P.2d at 674 guidance 63-30-3 in resolving § n. 17. The involved here is the immunity question, applying rather than remedy personal to a full for a injury, a noted, test. It must be Standiford right protected by Article however, that the amendment does not de- Constitution, the Utah provides: which clare governmentally hospitals owned All open, courts shall every rather, governmental functions; person, injury for an done him in his amendment, using precise language, only person, property reputation, shall governmentally declares owned health fa- law, remedy due course of cilities “except to be immune suit shall be administered without denial or provided” by otherwise Act. unnecessary delay.... Thus, Legislature gov- did not declare ernmentally health owned facilities to The term “remedy,” open as used in the engaged governmental functions,5 clause, full, fair, courts means the and com hospital Court’s statement plete remedy provided by the common law. engaged was in a Department Ins., See Smith v. function language mischaracterized (Fla.1987); of the stat- So.2d 1080 Wright v. Central event, ute. In any the statute Assoc., cannot re- Page Hospital Du 63 Ill.2d solve a (1976); constitutional issue. N.E.2d 736 Malpractice Kansas supra. 5. See note reasonable, Malan, Bell, must be 693 P.2d at 243 Kan. Coalition Victims and the statute creates classi- Kenyon v. Ham Cf. reasonably and (1984) (en fication must in fact sub- mer, 688 P.2d 961 142 Ariz. stantially legislative purpose. further

banc). Berry ex rel. v. generally See at The determination of rea- See id. 673. (Utah P.2d 670 Corp., 717 Beech Aircraft take ex- sonableness must into account the right 1985). or not the involved Whether right tent constitutional “fundamental,” as thought is be here —in right to sue for a full this case is under the Fourteenth term used under Article section 11—is diminished Amendment, important certainly an it is im- and the extent to which the burden discriminatorily ought not be posed furthers actually is a abrogated or unless there diminished importance goals, of those as well as countervailing public interest. strong See goals. Smith, at 507 So.2d cap imposed by liability The Notwithstanding importance creates at least two classes of 63-30-34 § not, not, did right, I would and Malan hospital patients. One class consists of scrutiny standard. the federal strict invoke injured govern- patients negligently at a Redhail, 374, 434 U.S. 98 Zablocki v. See mentally hospital who are entitled tо owned 673, (1978); Shapiro 54 S.Ct. L.Ed.2d 618 class is com- recovery, limited another 1322, 618, Thompson, U.S. 89 S.Ct. v. posed patients negligently injured at a (1969). While the least 22 L.Ed.2d 600 private who entitled to full institution employed by the test restrictive alternative recovery. critical is whether de- The issue on valid scrutiny strict standard focuses nying to some and constitutional determining in the constitu- consideration actually pro- substantially not to others statute, discriminatory tionality of a strict public treasury tects the from unreason- test in such as this application cases depletion. Clearly, pur- not able it is in an legislative power hobble unrea- would pose Act to Governmental strong in an sonable fashion area where govern- prohibit public expenditures all for competing have to accommo- interests fact, liability, tort and in the Act mental making. by legislative policy dated Moreover, no there is not do so. basis does hand, in the other the Court Malan On according patients concluding for al- great made clear that the latitude also University Hospital remedy a full making Legislature lowed the classifica- tort will threaten the financial sta- scrutiny under the minimal standard tions hospital, government or of the bility of appropriate is not when a constitutional result an undue drain on resources. even against. right is discriminated 693 P.2d at expend- While there will some additional indulge highly Nor the Court should liability for hospital’s incurred itures speculative hypotheses as to a statute’s damages, is no full there reason believe presumption purpose applying the present cost that that cannot be covered constitutionality. id. also Allied See See liabilities. 522, Bowers, v. 358 U.S. 79 S.Ct. Stores University Hospital teaching is a The (1959); 437, v. 3 L.Ed.2d Williamson hospital University with the associated 483, 461, Co., Optical 348 U.S. S.Ct. Lee is Utah of Medicine and it essential- School (1955); Matheson, L.Ed. 563 Baker ly supported by non-state funds. The affi- (Utah 1979). P.2d 233 Gunnell, Dale admin- davit of the associate standard, my view, appropriate The with the At- hospital, istrator of the filed scrutiny more bite than the minimum opposi- has torney General’s memorandum purport require partial standard but does summa- plaintiffs’ tion to motion for Legislature find ry oper- the least restrictive a total judgment, that of discloses $80,000,000 furthering purpose. (apparently its But nei- ating budget manner allow, hand, 1984), year only percent does it on the other such ther 3.5 virtually operating budget leg- came from judi- hospital’s latitude as to abandon wide legislation statutory appropriations. classifications cial review. islative purpose tive from the statute. of the Univ- flows See construction which authorized provided Malan, Center ersity of Medical 693 P.2d at 673. That conclusion Utah construction, the cost of million of $1.5 supported by a number of cases from other “private sub- while million came $4 jurisdictions. Agustín, Coburn v. See scriptions See Utah and contributions.” 983, (D.Kan.1985); F.Supp. 991-96 Jones (1981). The affida- Code Ann. 58-31-46 § 871, Medicine, Bd. 97 Idaho State funding excep- level of vit states: “This (1976), denied, 431 555 P.2d cert. University-based teaching tionally low for a U.S. 53 L.Ed.2d 223 S.Ct. is, hospital hospital, practically, (1977); Engelken, 241 Farley v. Kan. Although it self-supporting.” is true that (1987); Sibley Univеrsity of students at the Utah School Supervisors v. Board La. State training some of Medicine of their receive Univ., (La.1985); 1107-09 So.2d University Hospital, they re- at the also Maurer, 120 N.H. Carson v. private hospitals. other training at ceive Olson, (1980); A.2d Arneson v. Hospital competes directly University (N.D.1978). 270 N.W.2d hospitals subject that are not with other reasons, foregoing For the I conclude recovery and a limitation on tort therefore expense, that it through must stand the either 63-30-34 is unconstitutional as § otherwise, legal of full insurance or liabili- applies University Hospital to the because ty damages negligently pa- for caused to I, it violates Article section of the Utah pays hospital for patient tients. The ser- Constitution. Whether that section instance; vices rendered in each the burden applied municipal hospi- constitutional as unrecompensable is the same to tals and other care facilities a health is types patient; both and in this case the question day. I another leave for University Hospital financial the burden to private and to the the financial burden hos- III. SUITS AGAINST EMPLOYEES pital negligent actions is the same. There is no reason conclude that the complain they Plaintiffs also are de- University Hospital any would have more prived right to sue University their Hos- assuming difficulty in those costs than the pital including employees, doctors and major hospitals City other Salt Lake nurses, open provi- under the Utah courts Perhaps its those environs. costs will ulti- sion. rel. Berry See ex v. Beech Aircraft mately passed patients patron- on (Utah Corp., 1985). 717 P.2d 670 The ar- izing hospital the their insurance com- gument plain- here that at common is law panies, hospitals. as occurs with other hospital employees tiffs could sue the Neither nor hospital Attorney the the Gen- capacities, they pre- their individual but are begins eral this case even to demon- doing vented from that under the amend- strate the requiring hospital to shoul- ments to the Act. Plaintiffs also liability der the full cost will have a argue deprivation the constitutes substantial effect on the treasury.' state’s equal protection denial of of the laws. There that in personal is no evidence Utah outset, At the it should be injury judgments unduly large noted that or that they greatly although plaintiffs deprived have increased their num- been Indeed, government ber. the since remedy against bears the doctors nurses indi only a the total fraction of cost of the vidually, they remedy do have a full operation entity, it is clear that the against hospital. Berry, In we stated activity vast bulk of the is self-financed I, that Article section 11 was if not violated fees charges. provides injured person “the an law an effective and reasonable alternative reme sum, damage limitation,

In op dy_” Payne erates only on most seriously those (Utah severely Myers, 1987), injured, an P.2d 186 is intrusion on a this Court consti justified tutional held that is not that the amendment to what 63-30-4 did § ever marginal I, legisla enhancement of the not violate Article section 11 because of training program conducted in ei- against had clinical remedy plaintiffs private ther facilities. hospital. 63-30-4_ Limitations on Section that the discrimi- conclusion means That personal liability.... deny a does not natory aspect of 63-30-4 § remedy against under Article constitutional employee injury its entity or and, therefore, of review the standard by an oc- caused act or omission which analysis is less protection under during performance of such em- curs applied stringent than the standard duties, ployee’s scope within the of em- validity dis- damages. The of the cap on is, authority or under color of ployment, 63-30-4 turns crimination made § act, date of this exclu- after effective arbitrary in the classification whether proceed- action sive of other civil stat- presumed purposes of the light of subject ing by reason of matter the same primarily teach- hospital ute. Since or the employee estate is, view, hospital, my reasonable gave employee whose act or omission employees of the from the shift claim, employee rise to unless and, in protect them so institution through gross neg- failed acted or to act the effect, require institution assume ligence, fraud malice. or invariably liability, it almost full where joined employee may An in an ac- be view, therefore, my up anyway. ends entity a in against governmental a is not unconstitutional. 63-30-4 § if the representative capacity act or omis- complained one for sion of is which HALL, (dissenting): Chief Justice liable, entity may be governmental but employee may personally held lia- no departing in from join I do Court occurring for acts or omissions dur- ble traditional basis standard rational performance employee’s of the ing the constitutionality of assessing review duties, scope employment within the Immunity Act. Governmental Utah authority, color of unless it is or under presented disposi- issues which are employee acted or established that (1) appeal equal whether the of this are tive gross negligence, to act failed due protection guarantees of the and Utah or fraud malice. by Constitutions violated United States Liability Insur- Section 63-30-34. Im- provisions of the Utah Governmental ance-Judgment over limits of or award upon Act a munity place which limitation policy reduced-limitation insurance from a the amount can be recovered against or self-insurers. judgment award governmental entity; and whether any judgment against award a —If or guarantees equal protection the Utah entity under 63- governmental sections States aré violat- and United Constitutions 63-30-10, 63-30-8, 63-30-9, 30-7, or by provisions ed of the Utah Governmental governmental for against employee Immunity Act restrict individual which governmental entity may which against governmental employees. suits duty indemnify statutory employ- of the Utah Govern- Relevant sections ee, minimum for exceeds the amounts provide: Immunity Act mental injury damage bodily property liabili- govern- 63-30-3. 63-30-29, Section the court ty specified Except from as mental entities judgment of the shall reduce the amount suit.— act, all may provided otherwise equal minimum award to a sum or are immune from governmental governmental entities requirements unless any injury from сoverage suit for which results entity has secured insurance function, governmental requirements the exercise of said minimum excess hospital, nursing governmentally-owned shall event the court reduce home, to a governmental judgment or other health care award amount medical, facility, approved equal applicable provid- an limits sum policy. nursing, professional or other health care ed in the insurance Judgment entity against governmen- self-insured acts as Any governmental hospitals tal is limited to the statutory section 63-30-28 is lia- under self-insurer amount, judgment against or award entered while insured any judgment for ble employee governmental hospitals under sections limited against it or its 63-30-8, 63-30-9, 63-30-10, 63-30-7, purchased pol- amount of the insurance indemnify icy. employees its and is liable to liability in personal accordance against (4)Finally, governmental victims tort- 63-48-7, through sections 63-48-1 according feasors are classified to the se- extent of the only to the minimum

but verity injuries. of their Victims recov- bodily injury property for amounts limit; only up statutory er this al- specified damage liability in section 63- lows less serious victims with 30-29, judgment arid no award shall full, possibly seriously recover in while in- action in be entered in such excess of jured discriminately victims are denied re- such amounts.1 minimum covery injuries exceeding statutory provisions, that these argue Plaintiffs limit. action, they apply to this violate constitu- statutory proscription against As to the equal protection guarantees tional suing governmental employees performing similarly classifying people situated differ- functions, plaintiffs contend issue, ently. damage As to the limitation equal protection that the guar- Act violates essentially contend plaintiffs that the Gov- patients antees because who are treated Immunity Act ernmental violates the employees private hospitals may bring protection of the following clauses because employees inju- action those alleged types four discrimination. ries negli- incurred as a result of their (1) The statutes discriminate between gence. patient A injured by iswho public malpractice private of victims versus negligence of employees University of limiting hospitals by the former judg- Hospital, however, may any- not recover exceeding amount, statutory a ments not thing employees from personally those un- allowing latter full recovery while fraud, gross negligence, less or malice is negligently damages. inflicted found. (2) injured by governmental Individuals foregoing contentions need to be ad- performing govern- entities “nonessential” light legal dressed in principle mental functions are entitled to unlimited legislative presumed acts are constitution- recovery, injured by whereas individuals heavy al2 and that a burden necessarily providers care health are party challenging rests on the legisla- statutory subject to the limit. grounds.3 tive action on constitutional governmentally Therefore, exists, any Victims of owned if doubt it must be hospitals are classified whether the hos- resolved favor of the constitutionality of pital purchased statute(s).4 insurance or is self-insured. (Intеrim Inc., Centers, 431, 438, Supp. Skaggs Drug 1. Utah Code §§ Ann. 63-30-3 21 Utah 2d 1981) (amended 1985), 958, (Supp.1979) (1968). & 1984 -4 juris 446 P.2d 962 Courts in other (amended 1983), (Supp.1979) (repealed See, -34 similarly e.g., dictions have held. Johnson 1983; 1987). reenacted Inc., amended 374, 381, Hosp., v. St. Vincent 273 Ind. 404 585, (1980); Reorganized N.E.2d 591 Winston v. Planning Timpanogos Management & Water Dist., 324, (Mo.1982) (en School 636 S.W.2d 327 Dist., Agency Conservancy v. Central Utah Water Sambs, 370, banc); 97 Wis.2d at 293 N.W.2d at 562, 1984); (Utah Murphy, 690 P.2d 564 State v. 511; Stephenson v. Mitchell ex rel. Workmen’s 1220, (Utah 1983); Dague Piper 674 P.2d 1222 v. 95, Compensation Dep't, (Wyo.1977). P.2d 97 569 520, 530, Corp., Ind. 275 418 N.E.2d Aircraft 207, (1981); City Brookfield, Sambs v. 530, 4.Dague, 213; 275 Ind. 418 N.E.2d at 370, 356, 504, 511, 97 Wis.2d denied, 293 N.W.2d cert. Winston, 327; 636 S.W.2d at Americans United 1035, 611, 101 449 U.S. S.Ct. 66 L.Ed.2d 711, 716, (Mo.) (en Rogers, v. 538 S.W.2d 721 (1980). 497 banc), denied, 1029, 653, cert. U.S. 429 97 S.Ct. 1035, Sambs, Savage, (1976); 370, City 3. Salt Lake v. 541 P.2d 50 L.Ed.2d 632 97 Wis.2d at 1037 (Utah denied, 1975), 915, 511; Stanhope County, cert. 425 U.S. 293 N.W.2d at 96 S.Ct. v. Brown 1514, (1976); 823, 837, 711, (1979). 47 L.Ed.2d 766 Trade Comm'n 90 Wis.2d v. 280 N.W.2d 716

377 always has been a matter funda- regard, prerogative not the it is [I]t Court, a principle princi- mental with this nullify a enactment the Court clear, very and un- our na- complete, ple dictated institutional unless there a provi- specific obligations, of some ture and constitutional mistakable violation Indeed, powers judicial sion of the constitution.5 we exercise our review and, investigate duty necessity. insofar as Court’s as a matter As said in challenged legisla- possible, Petrillo, 1, construe the v. 332 5 United States U.S. ave- 1538, 1540, as to discover reasonable so 91 L.Ed. S.Ct. [67 1877] statute(s) up- can be (1947), consistently nues “We have refrained held,6 allowing every presump- reasonable passing constitutionality on the aof Further- constitutionality.7 involving tion in favor statute until a case it has more, prerogative question not it is our stage reached where the decision wisdom, desirability, social precise constitutional issue is necessi- 10 underlying given statute. Those policy ty.” legisla- exclusively matters left necessarily principle, This that we avoid And judgment and determination.8 ture’s striking addressing pur- down statutes statutory challenger that a when a asserts especially grounds, suant to constitutional equal protection violates the classification urged by parties, honors the those clause, prove he or must abuse of she separation powers doctrine of of our beyond a reasonable legislative discretion government and three branches of exists doubt.9 notwithstanding the of mind or conviction personal desires of this Court or its prudent judi-

Regarding principle restraint, policy rectify per- Supreme justices to determine the United States cial wrong.11 has ceived Court stated: Univ., 2, 13, (Utah Smith, 1977) v. v. Brown Wichita State 219 Kan. Sims 571 587 State, (quoting (quoting Pride Inc. v. Utah 2d Co. Club 547 P.2d Tri-State Hotel (1971)); Londerholm, P.2d 669 Utah Farm Bureau Ins. Co. Kan. 408 P.2d Ass'n, (Utah dismissed, (1965), Utah Ins. Guar. appeal U.S. 1977). S.Ct. L.Ed.2d 67 1234, Lindquist, v. 674 6. See State P.2d 1237 State, Employees’ v. P.2d Utah Pub. Ass'n 610 9. Casarez, 1005, (Utah 1983); P.2d State v. 656 1272, 1980) (Utah Lindsley (quoting v. Nat 1274 71, (Utah 1982); Wood, State v. 648 P.2d 82 341, 1008 61, Co., 337, 31 ural Carbonic Gas 220 U.S. S.Ct. denied, 988, (Utah), cert. 459 U.S. 103 S.Ct. 370, Sambs, (1911)); 97 Wis.2d at 55 L.Ed. 369 (1982); Boyer, In re 74 L.Ed.2d 383 636 P.2d 293 N.W.2d at 511. 1085, (Utah 1981). 1088 78, (Utah 1981); Draper, 7. v. P.2d Zamora 635 80 144, 151, Georgia, 401 S.Ct. 10. Sanks v. U.S. 91 437-38, Comm'n, 2d at 446 P.2d Trade 21 Utah 593, 597, (1971), quoted Gray 741 in 27 L.Ed.2d 962; Indeed, Winston, at at 636 S.W.2d 327-28. Sec., 807, Dep't Employment P.2d 824 v. 681 of differently persons ‍​​‌‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​‌‌‌​‌​‌‌​‌‌‌​​‌‌‌‌​​​​‌​‍leg- are treated under where L, 1984) (Durham, concurring (Utah dis- and nature, basically economic in islation is senting). legislation held such is entitled to a we have that pre- presumption constitutionality of and such 1115, Registration, Dep’t Stone v. discriminations, may justify sumption even (Utah Wood, ("It 1977); 648 P.2d at 82 1117 cf. demonstrating actual evidence a ration- without rule we should avoid is а fundamental for the See Baker v. al basis distinctions made. required addressing unless a constitutional issue 233, 236, Matheson, (Utah 1979). 607 244 P.2d Dunn, (citations omitted); so.”) Peck to do v. 367, (Utah) ("[I]f P.2d there a choice 327; 574 369 Winston, v. 636 S.W.2d Masich United interpreta statute’s] as to the matter of ... Co., [a Smelting, Mining & 113 Utah States Ref. application, and should be done in a 126-27, 101, dismissed, appeal 191 constitutional, as 866, 138, will it manner which make (1948), 93 411 U.S. 69 S.Ct. L.Ed. 335 invalid."), opposed it denied, 905, 405, to one which would make reh'g 325 U.S. 69 S.Ct. 93 L.Ed. 2822, 927, denied, U.S. S.Ct. 56 (1949); cert. 436 98 City see also New Orleans v. 439 21-22, Brown, (1978); 303-04, 2513, Dukes, 297, 219 Kan. at L.Ed.2d 770 427 U.S. 96 S.Ct. 2516- 1023, (“As judges 17, desire (1976), P.2d at our quoted 547 L.Ed.2d in Short v. 49 511 Texaco, Inc., 518, 528-29, as fair to us individu to achieve what seem 406 N.E.2d 273 Ind. 516, (1980), aff’d, als overcome the laws enacted our 102 cannot 632 454 U.S. S.Ct. (1982); duly legislators.” Majors, was time elected "There L.Ed.2d 738 Sidle v. (1976); used Fourteenth Amend N.E.2d when the courts Ind. Acknowledging explained, tempered, these test” or established con has not been cepts, “per I am not convinced that the distinguished by opinion the main oth balancing un formance of function ... [a] involving er claims cases and noneconomic process appro der the due framework” legislation, equal protection, priate required “a matter of necessi Instead, injuries. personal recover for Indeed, ty” question in this case.13 “[cjharacterizing plaintiffs’ convinced that determination, presented for our as con rights here as ‘nonfundamental’ would vir opinion, ceded in is whether the the main tually legislative insure that the will action legislation impermissibly in question affect [equal be found constitutional under the plaintiffs’ equal protection rights ed standard,” protection] basis rational Notwithstanding “overlap” the law. main, opinion imposes fashions and a due analyses brought between the claims process analysis challenge order to pursuant protection pro and due so, subject legislation. doing ignores (1) rights, plaintiffs cess have not chal principles judicial established review17 lenged validity subject of the statutes to reach a desired result. provision open under the courts or the due (2) process clause;14 parties have nei Further, the use a rational stan basis urged applicability ther nor addressed measuring dard in limiting statutes bar appropriateness discarding estab ring governmental liability not, does as the principles equal protection lished review opinion main implies, inevitably in a result opinion’s process favor of the main “due finding legislation that the is constitutional. (3) balancing test”;15 pursu consideration Indeed, in Ryszkiewicz City Brita Newof process balancing” ant to a “due analysis in,18 Court, Supreme Connecticut has not been “forced” into likewise other reviewing an action the state to applicable addressing cases similar issues damages recover in a sustained provisions; (4) signifi constitutional fall, applied the test followed “the vast cant distinctions between the relevant con majority considering governmen of courts” principles analyses stitutional pursuant tal statutes and concluded that acknowledged thereto have not been or ad there opinion; impos dressed was no rational basis the main behind broad application process balancing “due limit torts for all process however, exists, given, ment due clause remedy to strike down laws or no ei under statute, thought Since to be unwise. then ther the law or courts have common ... [Article original concept protect returned to § of constitution none.” Courts en 11] create[s] rights interpretation, existing al courts do force not substitute accordance remedies.)); judg their social and beliefs for established and known economic Robson Dist., ment Penn Hills School bodies whose Pa.Cmwlth. function it is 1273, pass (nothing open 437 A.2d 1276 the laws. court has been cited to no prevents legislature courts clause of constitution process case where constitutional due has been extinguishing action). from cause abrogation of legislatively used as a basis for the of imposed governmental (Citations immunity." Roth, 372, 357, 15. See Yotvat v. 95 Wis.2d 290 omitted.)). 524, (“The (Wis.Ct.App.1980) ques N.W.2d 532 rights tion of the of tort victims 357; opinion 12. Main at see abo id. at 356. one, legislation a difficult and area that complete should not be overturned without 151, Sanks, 13. See 401 U.S. at 91 S.Ct. at 597. briefing by parties.”), superseded by the statute Wis., Whitewater, Daily 756, as stated in v. Univ. of Berry Berry Aircraft, 14. See ex rel. v. Beech Til (Wis.Ct.App.), 145 Wis.2d 429 N.W.2d 83 670, (Utah 1985); 674-86 v. Madsen cf. denied, (Wis.1988). review 436 N.W.2d 30 627, Borthick, (Utah 1983) ("Article 658 P.2d I, 11 of § the Utah Constitution ... was not 357, opinion 16. Main at 358. legal remedy meant to create a new or a new I, Consequently, of action. Article § supra 17. See accompanying notes 2-11 and text. change principle sovereign worked no of immunity, sovereign immunity and is not un 589, 18. 193 Conn. 479 A.2d 793 section.”) (citing constitutional that under Conn, Wightman, Brown v. 47 Utah 151 P. 19. Id. at 479 A.2d and at (1915) (“[Wjhere no of action cases cited therein. states; general holding “All shall laws nature Britain.20 in New that occur by operation.” Ala have uniform fourteenth such, cited decisions that court support Supreme Courts amendment of the United States Constitu- Kansas and bama immunity legisla similarly prohibits tion states from enact- ing the conclusion tion, deny “any person the rational basis its when measured laws within plaintiffs their test, equal jurisdiction protection nonetheless denied of the laws.”26 rights protection of equal provi- Although language these constitutional of two dissimilar, embody general law.21 sions is both principle “persons similarly situated expressed in the Regardless, the concern similarly, and persons should be treated legislation before us opinion that the main should not be different circumstances ap- under rational basis is constitutional if treated as their circumstances were the claim justify not its proach does “[t]hat same.”27 means accomplished by balancing should be equal process, rather than an of a due Lewis, As al- we stated Malan recog- Accordingly, analysis.”22 protection, I, though section 24 of the Utah article specific compelled by the we are nizing that general Constitution embodies the same here, law, and relevant case raised equal protec- issue principles incorporated in the to consider judicial review fundamentals tion clause the United States Constitu- constitutional- legislation’s analyze tion, and application and of our construction following estab- regard to the only in ity provision is con- state constitutional not principles, I dissent protection equal lished trolled the federal court’s construction opin- in the main expressed from the views application protec- federal developed ion.23 While case law un- clause. per- der fourteenth amendment Act The Utah Governmental I, applying suasive in article section for type of losses sets forth binding long not such law is on state recovery places a limitation permits violates as we do reach result that recovery Plain- allowed.24 the amount equal protection Not- the federal clause.28 therefore, contend, that some victims tiffs my colleagues withstanding comments greater rights The mere than others. contrary, analy- purposes persons plaintiffs situated as exclusion sis, no the standard conflict exists between re- classes of victims entitled to from the and that however, utilized this Court of review covery, does not alone render Therefore, Rather, by federal courts.29 both used legislative scheme invalid.25 article cited as to federal cases will be 24 of the Utah Constitution state and section Conn, 598-600, were re- Utah Code Ann. 63-30-29 -34 §§ Id. at 479 A.2d at 799- 20. pealed section reenacted in 1983. latter resulting That now limits Conn, (citing $250,000 per injury person Id. 479 A.2d at 800 personal City $500,000 Peddycoart Birmingham, persons. 354 So.2d Utah Code or more two Auth., (Ala.1978); Turnpike (Supp.1988). Flax v. Kansas Ann. 63-30-34 § (1979) (apparent use of Kan. 596 P.2d 446 Fork, test)). City Spanish 25. Child v. rational basis (Utah 1975); Hughes, Parham v. 441 U.S. omitted). (footnote 347, 1742, 1745, opinion 351, at 356 Main 60 22. 99 S.Ct. L.Ed.2d 269 420, (1979); 425, Maryland, 366 U.S. McGowan v. ignore principles 1101, 1104, were the noted (1961); 23. Even if I to S.Ct. 6 L.Ed.2d 393 81 agree opinion the that a Winston, above and with main 636 S.W.2d 327-28. process “balancing analysis” acceptable due case, 661, Lewis, (Utah would determi- this I not concur the v. 693 669 26. Malan P.2d analysis 1984). nations that such favors or that damage provisions are the limitation unconsti- (footnote omitted). tutional. & 27. Id. citations (citations omitted). chal- 24. While the amount under the 28. Id. at 670 $100,000 lenged per- per statutes was limited to text; $300,000 persons, accompanying supra 2-11 8-9, 1821-1822; rights have been as U.S. classified “fundamental” at 87 S.Ct. at Carson v. Maurer, 825, scrutiny and extended to a strict 120 N.H. 424 A.2d review. Mur- 830 (1980) (medical 3, gia, 3, malpractice legislation), 427 U.S. at 312 n. S.Ct. 96 at 2566 n. therein, therein; by Appeal cases cited limited and cases cited Bosse 16A Am.Jur.2d Consti of lait, 604, 750, (1988). 130 N.H. 547 A.2d 682 § As was tutional Law at 819-20 cases cited Troyer Wyoming Department the case in v. therein. of

381 State, A before tribunal him- travel interstate.... create and to counsel, any does not invoke strict civil to right or interest self or cause which important to scrutiny just it is because party. he is a rights those aggrieved party. Only support proposition, plaintiffs In of their implicit part of the life of form an which v. White case of cite Montana State.38 society can be free citizen in a free a Therein, challenged a plaintiffs Mon- called fundamental.4 barring recovery of tana statute noneco- 4- Supreme Court has re The United States damages limiting recovery nomic of concept rights "implicit in the ferred to such damages in a economic suit liberty.”37 of ordered Supreme stаte. Montana Court de- essentially right Plaintiffs assert right bring to of clared cause bring personal injuries action for civil personal action for was fundamen- right legal full redress are fun- statutory tal and that classification I, rights guaranteed under article damental satisfy compelling scheme had thus 11 of Utah Constitution. There- section state interest.39 fore, plaintiffs contend that constitu- disagree I the Montana court’s tionality of the Governmental premise that right there is fundamental provisions allegedly abrogating or Act’s govern- damages recover unlimited constricting rights judged by those must be performing governmental mental entities scrutiny strict test. the more burdensome majority juris- functions. The vast of other I, provides: Article 11 section considering the have dictions issue reached open, per- every All courts shall be own, supportive my a conclusion of that the son, injury to him in his for an done bring action right for the person, property reputation, shall (and particular to sue a law, remedy by due have course purposes not party) fundamental without denial or shall administered instead, protection analysis, delay; person but sub- unnecessary and no shall ject prosecuting defending to a rational basis review.40 be barred from Ass'n, majority upon Employees’ at of cases re Utah Public 610 P.2d 40.The discovered Connecticut, (quoting applied footnote Palko v. 1273 view have the rational basis test and 319, 149, (1937), immunity L.Ed. upheld governmental 302 U.S. 58 S.Ct. 82 288 and other grounds, Maryland, See, v. overruled on other Benton legislation. e.g., Duke Power Co. v. relevant 2056, 2061-62, 784, 793-94, 93-94, U.S. 89 S.Ct. 23 59, 395 Study Group, U.S. Carolina Envtl. 438 (1969)). 707 L.Ed.2d 2640-2641, 2620, S.Ct. 57 L.Ed.2d 98 595 Wilson, (standard applied); implicitly P.2d 669 363, 661 38. 203 Mont. P.2d 1272 (lesser implicitly applied); at 572 standard Fritz 335, Colo., Regents Colo. Univ. 196 338- v. Mont, 365, Id. 203 at 661 at 1275. White P.2d 39, 23, (1978) (en banc); Ryszkiew P.2d 25 586 subsequent case of v. v. State and the Pfost 598-599, 799-800, icz, A.2d at 193 Conn. at 479 206, State, (Mont.1985), 219 713 P.2d 495 Mont. (vast majority of courts and cases cited therein easily distinguished. During the reforma test); apply Jetton v. Jacksonville rational basis readoption of a new Montana constitu tion and Auth., 396, (Fla.App.), So.2d 399 re Elec. 399 1972, "swept tion in the constitutional framers denied, (1981); v. view 411 So.2d 383 Packard governmental immunity." all notions of aside 171, 604, Idaho 608- Joint School Dist. No. 104 Mont, 209, Pfost, 219 at P.2d at 499. There 713 09, 770, (Idaho Ct.App.1983) 661 P.2d 774-75 fore, statutory attempts to reinstate limited later 357, Johnson, (citing 104 Idaho 659 Leliefeld ap governmental in Montana were Winston, (1983)); 111 636 S.W.2d at 327- parently an unconstitutional inva considered 30; Rochester, Cargill City Estate upon sue entities sion 661, 704, (1979), Mont, A.2d N.H. 211-218, legal Id. at for full redress. dismissed, appeal 445 U.S. 100 S.Ct. contrast, adoption at 505-06. Robson, (1980); L.Ed.2d 63 Pa.Cmwlth. Constitution, including open Utah courts 255-56, 1276; Sambs, at 97 Wis.2d at 437 A.2d provision article worked no 370, 377-78, 514; N.W.2d at Stan at change already existing principle of sov 837-45, 629; Madsen, hope, at 280 N.W.2d at 716- 90 Wis.2d ereign immunity. See 658 P.2d at Yotvat, 363-65, 20; at Wis.2d at 290 N.W.2d Ryszkiewicz, also at A.2d see Conn. 528-29; 799; Troyer, (right 722 P.2d at cases cited Troyer, 722 P.2d at 165 to sue fundamental). particular therein. individual 382 regard,

In representative courts have taken several of those decisions which approaches upholding different the con- explicitly have found constitutional stitutionality governmental immunity of granting immunity governmental of em specifically they statutes as shield an em- ployees. Garcia, In the court reviewed ployee’s holding liability. Some courts it essentially what considerеd to be an government employees are immune from equal protection challenge statutory to the significant liability have done so without immunity public employees. of In conclud protection rights.41 reference to Oth- ing legislature that the merely being was persons ers have held that those who seek waiving consistent in immunity public recovery against private tórt-feasors are a employees public on the same basis as for persons different classification of than entities, the court noted a rational basis: recovery against seek those who state public employees were not immune [I]f employees, justifying or its thus the fact liability, from government would be group that the latter be treated differ- responsible for all claims ently.42 public employees and there would be no contrast, In applying equal pro- while governmental immunity. Immunity for analysis comparable tection and some- public employees is also essential to in- contexts, many what different courts have unhampered sure the performance of summarily implicitly upheld and/or an em- governmental their duties. If every ac- ployee’s immunity liability.43 from In do- public taken employee is sub- so, seemingly recognize several courts ject judicial review, he will be reluc- the wisdom of the in protecting tant to take actions necessary which are governmental employees liability.in good for the general public.48 many [governmental] instances since “no entity can through ... act otherwise than comparison, Court Yotvat enu- individuals, i.e., officials, officers, or em- merated five underlying considerations 44 ployees.” immunity public of employees which consti- tuted

Finally, a rational Albuquerque Garcia v. basis for distinguishing Public Education,45 Schools Board between the private Yotvat v. victims of public Roth,46 and v. Martinez are employee Martinez, tort-feasors.49 And in California47 See, State, 41. e.g., 483, 486, Begay Larsen, v. 44. Cornwall v. 925, 104 N.M. (Utah 571 P.2d 938 252, (N.M.Ct.App.1985), 723 P.2d 256-57 1977) (Crockett, J., rev'd see, concurring); e.g., Troy grounds, Begay, on other 375, er, Smialek v. 104 N.M. 160-62; 722 P.2d at note 52 and accom infra (N.M.), denied, 721 P.2d 1306 cert. 497 U.S. text; State, panying 517, Frank v. cf. 1020, 677, (1986). 107 S.Ct. 93 L.Ed.2d 727 (Utah 1980) (contrary 520 deny to reason to public employer to a See, e.g., 42. O’Dell Indepen v. School Dist. of grant very employee and then allegedly dence, 403, (Mo.1975) (en banc), 521 S.W.2d 409 causing injury). superseded by Bartley Spe statute as stated in County, cial School Dist. St. Louis 649 S.W.2d 391, (N.M.Ct.App.1980). 95 N.M. 622 P.2d 699 (1983); Troyer, 864 722 P.2d at 165. See, Chisom, 1239, e.g., Bell v. 421 So.2d 1242 357, 46. 95 Wis.2d 290 N.W.2d 524. (Ala.1982); Highway Bonds v. ex rel. Pa Calif. trol, 314, 322, 792, Cal.App.3d CaI.Rptr. 138 187 277, 47. 444 U.S. 553, 481, 100 S.Ct. 62 L.Ed.2d (1982); Co., 797 Paving v. Standard 64 Seifert denied, reh’g 920, 1285, 445 U.S. 100 S.Ct. 109, 116, 537, (1976), I11.2d 355 N.E.2d 539-41 L.Ed.2d 606 grounds, overruled on Contracting other Rossetti Claims, 72, Co. v. Court 521, Ill.2d 92 Ill.Dec. 394-95, 48. 95 N.M. at 622 P.2d at 702-03. (1985); City N.E.2d 332 Anderson v. Detroit, 496, 499, Mich.App. 221 N.W.2d 49. 95 Wis.2d at 290 N.W.2d at 529. The (1974); Farms, 169-70 Green-Glo Inc. v. Turf included; factors identified State, (Minn.1984); 347 N.W.2d "(1) danger Sena influencing School Bus Co. public v. Board Education officers Schools, Sante performance Fe Public in the N.M. of their functions (N.M.Ct.App.1984); lawsuit; Lumpkin threat the deterrent effect Albany Services, Inc., Truck Rental 70 A.D.2d personal which the threat liability might (N.Y.App.Div. N.Y.S.2d considering on those who entering 1979). service; (3) the drain on valuable time

383 provisions lenged of the Utah Governmen- Supreme accepted Court the United States Immunity plaintiffs that a rational rеla- deprive conclusion tal Act do not California’s tionship pur- the state’s between existed property rights. of remedies or There- giving immunity to pose and statute fore, I, 11 article section of Utah Con- making parole de- governmental employees support stitution cannot extended be cisions: recovery.51 right to full tort and unlimited policy “practical in a fashioning In state allowing against And suits this, like and area” the Cali- troublesome employees contrary to Utah Code Ann. reasonably fornia could con- Legislature 63-30-4(3) (4) impair would § judicial parole clude review ability its duties perform state’s to inhi- inevitably “would officer’s decisions effectively result in indirect suits in- of discretion”. That bit exercise required are governmental entities which impair the could State’s hibiting effect indemnify pursuant employees to such to parole ability implement program to the Indemnification of Public Officers & designed rehabilitation in- promote Employees result Act.52 Such would security prison mates as within as well objectives thwart of the Governmental promise poten- by holding walls out a Immunity pre- Additionally, Act. we have agrees one tial Whether rewards. 63-30-4, viously granting held that section disagrees decision to with California’s immunity employees, does not con- state immunity parole of- provide absolute I, 11 travene article section Utah kind, ficials of this one cannot in a case Constitution, plaintiffs inasmuch as the rationally furthers deny policy opportunity situations such that reasonable lawmakers favor.50 redress seek in the courts.53 persuasive. Such rationale is Accordingly, case, of this under the facts I, language of construing article legal redress from a state full Constitution, section 11 of the Utah we per- employees its governmental entity and view the law as it existed at the common not forming governmental functions is an adopted. time the was constitution Since independent right entitled to fundamental principle sovereign immunity was a time, scrutiny every instance.54 Similar- principle at that the chal- strict well-settled I, 11, actions; (4) provision I courts article reit- caused such unfairness of subjecting personal liability for the erate our in Madsen v. Borthick: officials conclusion subordinates; (5) feeling acts of their Sovereign immunity principle that the —the procedures and removal the ballot courts state cannot be in its own without sued dealing appropriate more methods of principle of its consent —was a well-settled public office.” misconduct in time Utah American law at the be- common Regents (Quoting Lister v. Board the Univ. I, came a state. Section 11 of Utah Article 282, 299, System, Wis. 72 Wis.2d 240 N.W.2d of 610, Constitution, prescribes that all courts (1976)); Pennsylvania, 621 DuBree v. cf. open persons shall not barred shall 542-543, 540, 293, 481 Pa. 393 A.2d 295-96 using injuries, was them to redress (1978) (noting determining considerations remedy or a new meant to create a new whether official should be immune from Consequently, Article Section of action. 11 liability), applied Synkonis, in Pine v. cited and principle change worked no in the sover- 482-88, 1074, 479, 79 470 A.2d Pa.Cmwlth. eign sovereign, immunity, case).. (non-equa¡ protection section. nоt unconstitutional under'that omitted). (citations P.2d at 629 658 282-83, 50. 444 100 S.Ct. U.S. at at 557-58 challenge) (presented process (quoting due (repealed Utah Code 63-48-1 to -7 §§ 52. Ann. 263, 270, Royster, 410 U.S. S.Ct. McGinnis 93 replaced by & Code Ann. §§ in 1983 Utah 63- (1973); L.Ed.2d 282 United ‍​​‌‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​‌‌‌​‌​‌‌​‌‌‌​​‌‌‌‌​​​​‌​‍35 States 30-36, -37, (1986 Supp.1988)); see -38 & also (7th Twomey, ex rel. Miller v. 479 F.2d 702; Garcia, supra P.2d at 95 N.M. at denied, Cir.1973), 414 U.S. cert. 94 S.Ct. notes 40-51. Garcia, (1974)), cited in L.Ed.2d 102 at N.M. 622 P.2d at 703. Myers, Payne Payne ex rel. Conn, (Utah 1987). Ryszkiewicz, 51. See 479 A.2d Although plaintiffs specifically at 799. do not Holding challenge constitutionality improperly of the invalidates the Utah Gov- otherwise open power promote Act under ernmental Utah’s P.2d — nicety, mathematical inappro- is also with or because in ly, any intermediate review in case, application practice inequality. it results some it has no priate in this as constitutionality of the dealing in in 3. When classification such a sovereign immuni- principles question, any well-settled law is called if state of reasonably facts can be ty.55 conceived that it, would sustain the existence of that Thus, redress for rights to full since state of facts at the time the law was by plaintiffs are not funda- injury asserted enacted must be assumed. suspect a class mental and do not involve 4. One who assails the classification scrutiny, appro- or merit intermediate carry in such a law must the burden of protection analysis is the “ra- priate equal showing upon any that it does not rest whereby perti- standard” tional basis basis, essentially reasonable but is arbi- nent must be sustained un- classifications trary.57 arbitrary no relation- they are and bear less provisions Those of the Utah Governmen- legitimate governmental inter- ship to a Immunity plaintiffs tal Act which assert est.56 deny equal protection them of the law need analysis such are as principles light foregoing be examined in an- follows: alytical framework. The issue to ad- equal protection clause of the 1. The a dressed is whether statutes have rea- not 14th Amendment does take from relationship legit- and rational to a sonable classify adop- power state the objective.58 imate Notwith- laws, police but admits of the tion of standing contrary, statements to the we scope exercise of a of discretion wide operation heretofore held the regard, and avoids what is done facility “governmentally-owned health care basis, it is reasonable when without University such as the Medical Center to be purely arbitrary. and therefore is ‘governmental contemplated function’ as having prior 2. A classification some rea- the statute to amendment.”59 against Thus, plaintiffs’ sonable basis does not offend rationale and those es- merely poused by my colleagues overruling it made that clause because is not health, morals, evaluating constitutionality safety, Berry, and welfare. See basis test in 677, Therein, legisla- guest we held that a 717 P.2d at wherein we discuss the the Utah statute. differently yet ture’s abolition of certain common law reme- statute treat individuals equal protection personal dies for and substitution of meet constitutional and access (1) applies pursuant requirements other remedies to the Workmen’s to the court if the law Act, class, (2) Compensation Occupational equally persons Disease to all within a Act, statutory and the No-Fault Automobile Insurance classification and different treatment Act; supra given upon locate, that possible, if a rationale gation to hospital which operation must be legislature and might have influenced by governmental entities. And performed reasonably upholds legislative a deter- that they point out that all such functions and Certainly, the mination.60 rationale potential liability for services entail a civil disputable. might locates be the Court beyond potential liability far of nones- However, judge to it is not our task governmental sential entities or other cor- legislation. of the rationale or the wisdom porations persons private or in the sector. gathers applicable data and legislature engages in a to follow.61 Government activities of chooses the course scope variety beyond far those of and cases, defendants herein es- As other business, private governmental opera- Im- sentially that the Governmental assert large people.63 of A tions affect number liability and munity Act limits the state’s governmental unit limited in fiscal re- legitimate public purpose thus serves the may capability to sources lack with- treasury, thereby protecting of the state’s stand the results of substantial unantic- safeguarding public govern- funds and the Moreover, liability.64 re- ability discharge public responsi- ipated unlimited ment’s 371, Sambs, governmental immunity historically was 60. See Wis.2d at 293 N.W.2d at 97 328; Hart, 512; Winston, necessary important in order to 636 S.W.2d at State v. believed 843, governmental depletion by protect funds from 89 Wis.2d 277 N.W.2d 847 annotator, pub damage resulting payment As noted one to balance the claims from a pursuant liability lic’s of action to waiver or the indemnification of state’s own government's protect agents employees with the need to committed its torts potentially devastating state-imposed performance fiscal resources from the Therefore, duties. claims, jurisdictions adopted stat several that the individual it was reasoned limiting or kinds of give way utes the amounts victim's need to be made whole must governmental tortfeasor. Although may recoverable public welfare. some re to gard governmental uniformly recognize of these Most legislative courts immunity as mistaken tort power prescribe have the bodies unjust, public responsi limitations on tort and that the limits are constitution Sambs, such limits ally bility exist. 97 Wis.2d at continue to Though they may abridge the reme 512-13; valid. 372-74, Alstyne, Van 293 N.W.2d at government opposed to 979-80; dies of victims of 975, at 1966 U.Ill.L.Forum Standiford tort-feasors, damage private limitation statutes City Corp., 605 P.2d 1232-37 Salt Lake having unanimously are almost viewed as (Utah 1980) (proprietary-governmental distinc relationship government’s rational need tion) (citing Alstyne); v. John W. Van Crowe provide management. effective risk An for Hosp., S.W.2d Harton Memorial 579 notation, Validity and Construction Statute (Tenn.Ct.App.1979); supra accom note 40 and Limiting Ordinance the Kinds or Amount Ac panying text. Damages Against Recoverable in Action tual Tort Unit, (1986), Governmental 43 A.L.R.4th 19 Sambs, N.W.2d at 514. 63. 97 Wis.2d at therein, including City Cauley v. cases cited Jacksonville, (Fla.1981) (cit 403 So.2d noted, Supreme 64. As the Wisconsin Court has Co., 2620); U.S. S.Ct. Duke Power liability against gov- the rationale that limited 40; supra see also note notes 62-74 and infra gov- necessary protect ernmental entities is accompanying text. entirely without ernmental functions is not pragmatic support. If entities with sub- 512; Sambs, Wis.2d at 293 N.W.2d at involved, the fi- stantial fiscal resources were Masich, 126-27, Utah at P.2d at 625. problem may On the other nancial hand, be minimal. Winston, 328; Sambs, governmental or those 636 S.W.2d at for smaller entities 372-74, 512-13; powers, at at Stan with more financial Wis.2d 293 N.W.2d limited 840-42, judgments consequences. hope, have serious 90 Wis.2d at 280 N.W.2d at 718-19 could (citing Alstyne, Stanhope, 280 N.W.2d at 719. Van Governmental Tort Liabili 90 Wis.2d Act, Change, enacting ty: A Decade 1966 U.Ill.L.Forum 919 the Governmental Alstyne]). have foreseen the need to Van It has been noted could [hereinafter point. The rational basis test tort- it misses covery to all victims ability of seriously impair protection require does feasors efficiently and effec- govern government objective compelling or Therefore, legislature’s it is the legislature utilize the best or wis- that the tively.65 and bal- prerogative to evaluate duty and Rather, to achieve its est means goals.68 risks, possible exposure to ance the relationship need a rational there compensate citizens need to liability, the statutory classifications of between availability and cost of insur- injury, object governmental tort victims govern- condition of ance, the financial legislation enhance in most legislature’s func- It is the units. mental limiting the financial cases while burden capa- statutory provisions tion to structure impose of such remedies would the exercise public interest fair- protecting the ble of taxpayers.69 reimbursing reasonably victims ly and govern- modern Given the realities of governmental services maintaining while litigiousness society, of our ment and the evaluating the financial bur- by realistically legislature, enacting the the Governmen- placed on the den to be taxpayers.66 Act, Immunity had a rational basis on tal contrast, the claim plaintiffs maintain In liability in- to fear that unrestricted permitting cases that un- raised in similar insolvency grave fi- volves the risk or tort claims from the limited must nancial burdens. Fiscal resources be gov- entity and the individual governmental preserved pay for essential available employee tort-feasor would ernmental services; governmental public financial nightmare as both the create a fiscal levels; kept burdens must be at reasonable individual, sig- without government and the limit- legislature it is for the to decide how treasury, can impact nificant on the state spent. It is also ed funds will be adequate pro- liability insurance obtain preserve legislature’s power the within Hence, in such actions. tect themselves public funds to insure that sufficient continues, argument there is no need to government provid- to continue will be able amount or restrict limit ing those services it believes will benefit its entities enumerated in the waiver to those true, may While this contention Act.67 citizenry.70 514; 841-43, Stanhope, potential 90 Wis.2d at 280 N.W.2d financial distress certain to limit (including imposed governmental Since the Act's waiver units at 718-19. towns) remedy quali- by large judgments provisions afford a to all without individual cities and Indeed, legis- impossible high premiums. fication and since it is to achieve insurance or given reasonably complete equality damage awards lature could have determined that thereof, governmental imposing liability upon state’s to limit the amount entities protection justifiable participation clauses of the Utah Constitu- in areas such as may discourage many the Unit- commu- tion and the fourteenth amendment of medical services by (particularly in this ed States Constitution are not offended nities state) the smaller ones aid, damage provisions. supra providing Act’s limitation See medical as the finan- text; necessary accompanying opinion monetary main that the limitations seems arbitrary. might It as well or imposed by subject statutes are “dras- nearly as well be a little more to one side tic,” low,” “arbitrary,” “absurdly thus or the other. But when it is seen that a egregiously infringing upon plaintiffs’ be, point line or there must and that jury to a question trial on the logical there is no way mathematical or damages,72 are unwarranted. As noted fixing precisely, the decision of the courts, other while value of the recov- Legislature accepted must be unless we ery prescribed by govern- limitation levels say very can that it is wide of rea- have, may mental statutes mark.74 sonable

through otherwise, inflation or substantial- Such is not the case here. ly seemingly decreased to insufficient amounts, Accordingly, I conclude that the chal- lenged provisions of the Utah Governmen- long constitutional, as the statute is [s]o clearly permis- tal Act relate to a ability

we have no intrinsic to review its legislative objective or, sible and are neither unwise, inherent wisdom if it seems discriminatory, arbitrary, nor power oppressive change it. Whenever lines application. their by legislation, are drawn The Act does not violate some seem unwise, plaintiffs’ equal protection rights responsibility or their but for draw- provides these lines access to the courts. It rests with the a fair judicial recovery against governmental means of review is limited. We [can agree with the expressed negligent sentiments entities for the acts of em- their but] urged other courts ployees which have their and officials.75 911, Silva, 916, 591, by statutory 71. State v. Nev. 86 478 assess is not offended omitted). (citation malpractice legislation). 594 limitations in medical Coleman, opinion 72. See main &365 366. 74. Louisville Gas & Electric Co. v. 423, 426, U.S. S.Ct. L.Ed. 770 Leliefeld, J., (1928) (Holmes, 73. 104 Idaho at P.2d at dissenting), quoted in Lelie (footnote omitted), part and citations feld, cited in 104 Idaho at 375 n. 659 P.2d at n. Packard, 104 Idaho at 661 P.2d at 775 (value decreased); limitation has 669-670, Cargill, supra accompanying see also Estate 119 N.H. at 75. See notes 52-54 and 708-09; Sambs, text; Berry, ("[LJegal 406 A.2d at 97 Wis.2d at see also 510; Johnson, provide N.W.2d at 273 Ind. at causes of action which remedies that cf. 400-01, cases, (right jury protect may, 404 N.E.2d at 602 to have section 11 interests in some order and the trial court’s I would affirm validity of the

uphold the constitutional the Utah Govern- challenged provisions of Immunity Act. mental C.J., HOWE, concurs Associate HALL, dissenting opinion of C.J. Utah, Appellee, Plaintiff and STATE RIMMASCH, Phillip Defendant Appellant.

No. 20760. Supreme of Utah. Court

May (footnote omitted).). yield power Legislature have to welfare” health, morals, promote safety, notes rights. We simultaneously identified in separate process hand, Berry approach, due by construing On the other article “quid pro quo” remedy” or “substitute 11 in Berry section as “an extension of personal test. The recover for process clause,” the due we committed our- injuries should be evaluated under these something selves to more than “rational tests. equal protection basis” deference under the doctrine. Analysis IV. Due Process sum, does recede enactment, every legislative before but To the extent that section 63-30-3 cre- may applied neither it be in a mechanical immunity employees govern- ated every fashion to strike statute with ment-owned health care facilities not en- which there be conflict.... functions, gaged governmental it created holdWe that section 11 ... and immunity where had none existed at com- prerogative Furthermore, are proper- mon excepting law. such en- ly by applying two-part accommodated scope tities broad of entities and First, analysis. section 11 is satisfied if immunity activities for which is waived in provides injured person the law an through 63-30-4 sections -10 also treated effective reasonable alternative differently rem- health care facilities from all “by edy due course of law” other government irrespective vindica- entities his constitutional governmental-nongovernmental interest. The activi- provided by benefit (he., the substitute immunity must ties distinction was waived substantially equal many value other as to other entities for activities that remedy benefit to the abrogated pro- clearly were essential to the core of viding essentially comparable government). substan- This extension of protection tive person, to one’s property, had effect substituting the remain- it, legislature set out accord for a com- waived remedy statutory negligence tort-feasors against both the victims of of action law cause mon

Notes

son and for two or more see 29. See notes 63-30-29, (Supp.1979), Utah Code Ann. -34 see also note 57. §§ infra 380 or, alternative, test, attempt will be made to each and no discrimination the wheth- and federal between state provisions differentiate er the merit intermediate review arguments. equal protection or, lastly, rationally legit- further some purpose, imate state therefore not consti- constitutionality In a statute’s analyzing tuting an invidious discrimination in viola- 24, we consider under article equal protection guarantees tion of the ap- criteria law meets the whether the the Utah and United States Constitutions.34 plying equally persons to all within Although the Utah Governmental Immuni- (or order for a classification class.30 In classifications, ty class) Act establishes several different treatment within to be protection statutory plain- none of the demarcations valid under Utah’s stan- dard, upon must be reason- type suspect such classificatiоn tiffs focus the involve arbitrary31 classification, race, and must be based able and nationality, such as or upon statutory the differences that further alienage, determined the United States upon objective.32 Depending impor- the Supreme require scrutiny to Court strict involved, the tance of the interest state will analysis.35 Furthermore, the Supreme burden to greater have a lesser show firmly Court the principle has reiterated This, then, relationship.33 establishes protection analysis “equal requires necessary analysis. framework scrutiny strict of a classification specific provisions to respect With be- only impermissibly when classification Court, necessary to fore this determine interferes with the exercise fundamen- proper at the standard of re- outset right operates peculiar tal disad- view, namely, challenged pro- whether the vantage suspect aof class.”36 Immunity Act visions of Governmental regard rights classified as “funda- operate disadvantage suspect mental,” this Court has stated standard impinge upon class or a fundamental as follows: protected the constitution such that the catalog of fundamental interests is compel- state would need to demonstrate a date, relatively small ling subject in the matter of and includes interest justify resulting things vote, statute in order to as pro- such Fin., Services, Department 30. (Wyo. State Tax Comm'n v. Social P.2d 576 Health and 722 158 1297, 1978); (Utah Dodge 1986), alleged P.2d 1298 v. plaintiffs Town herein have not that the 269, 267, 461, Romney, 25 Utah 2d 480 P.2d 462 Utah Governmental Act discriminates However, suspect class. as noted in Troyer, there no classifications this Act County, 31. Lake Hart Health Studio v. Salt 577 plaintiffs' upon pro based characteristics. 116, 1978); (Utah Loving Virgi P.2d v. apply equally every person visions of the Act nia, 1, 10, 1817, 1822, U.S. 388 87 S.Ct. state, injury by suffering and there is no (1967); Municipality L.Ed.2d 1010 Wilson v. suspect triggering compelling classification state 569, (Alaska 1983). Anchorage, 669 P.2d 3; analysis. Troyer, interest 722 P.2d at 165 n. accompanying see note abo 42 and text. infra City Thompson Corp., 32. v. Salt Lake 724 P.2d 958, (Utah 1986); Bishop, State 312, 36.Murgia, 427 U.S. at 96 S.Ct. at 2566 261, (Utah 1986). (footnotes omitted) (citing San Antonio School 1278, Rodriguez, Dist. v. 411 U.S. 93 S.Ct. See, Wilson, e.g., 33. P.2d at 572. 1287, 16, denied, reh’g 36 L.Ed.2d 411 U.S. (1973)). 93 S.Ct. 36 L.Ed.2d 418 More generally See J.J.N.P. Co. State ex rel. Div. over, rights classified as "fundamental" Resources, (Utah of Wildlife Supreme . Court have been few in number. 1982) Supreme guid While the Court has offered little ance as to characteristics of a See, fundamental e.g.. Murgia, Mass. Bd. Retirement v. right, rights privacy, marriage, procrea such 427 U.S. 312 n. 96 S.Ct. 2566 n. tion, voting curiam); travel first amendment (per Loving, 49 L.Ed.2d

see also notes the class are based differences that 40-50. tendency to further the statu have tory objectives. reasonable Furthermore, supra accompa- 55. See notes 10-21 & 40-53 and a classification may results, though nying Supreme inequality text. The United States Court be reasonable even some See, scrutiny haltingly. County, has used intermediate Crowder v. Salt Lake 552 P.2d Doe, 202, 217-18, 646, (Utah 1976) e.g., Plyler 2382, 2395, (upholding require 457 U.S. 102 S.Ct. notice denied, Act); reh’g 72 L.Ed.2d ments of the Governmental dif (1982); Superior fering Michael M. v. Court treatment of individuals does not neces U.S. 1131 County, sarily deny long equal protection Sonoma 450 U.S. 101 S.Ct. as the clas of 67 L.Ed.2d 437 (1981) Lalli, (gender); relationship Lalli v. sification has a reasonable to a Child, proper purpose, U.S. S.Ct. and lawful P.2d at 58 L.Ed.2d 503 187; (illegitimacy). presumption constitutionality may justify actual discrimination even without Robson, demonstrating Pa.Cmwlth. at A.2d at 56. evidence rational basis for the made, Baker, 1276. distinctions 607 P.2d at 235-36 cf. (court will not strike down enactment unless Ass'n, clearly Employees' party attacking 57. Utah Pub. 610 P.2d at 1273- it establishes that a con 337). violated). (quoting Lindsley, provision 220 U.S. 31 S.Ct. stitutional has been applied This Court has the rational basis test in Studio, involving equal protection other cases attacks Hart Health 577 P.2d See at 118. statutory Recently, various Ma- on tan, schemes. 670-75, Frank, applied we the rational 613 P.2d at 519. affording bility while some mischaracterizing this determina- and/or and inaccurate. unpersuasive injured by governmental those tort-fea- Nevertheless, spe- has Further, contend that sors.62 defendants for immuniz- cifically set forth its rationale increasingly unlimited makes dif- employees imposing ing governmental ficult, impossible, purchase if not suffi- recovery in the Gov- monetary limitation on coverage. They emphasize insurance cient Immunity Act. It is our obli- ernmental high risk involved activities such as

notes 40 & 60 and cial commitment to insure all claims infra disabling accompanying resulting notes 70 & 71 and text. from that aid could be ‍​​‌‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​‌‌‌​‌​‌‌​‌‌‌​​‌‌‌‌​​​​‌​‍in its 842-43, Stanhope, See 90 Wis.2d at 280 effect. 842-43, 70.Stanhope, Wis.2d at 280 N.W.2d at 90 719; Alstyne, supra at Van note at N.W.2d It is also to be observed that since the state 719. 971 n. 365. sovereign could choose to claim absolute immu 376-77, Sambs, Wis.2d at 293 N.W.2d at nity by 65. for torts committed enti ty, 514. to waive such immuni it is therefore entitled ty impose monetary limits and to reasonable 328-29; Winston, Sambs, 66. 636 S.W.2d at See legislature provided thereon. Since the for the 509, 514-15; at N.W.2d at 843, 97 Wis.2d remedy when it enacted the Gov Stanhope, 90 Wis.2d at 280 N.W.2d at 719. Act, judg it is within its ernmental ment to limit the maximum recoverable Winston, 67. 636 S.W.2d at 328. 629-30; Madsen, amount. See 658 P.2d at Win 328; ston, Sambs, S.W.2d at 97 Wis.2d at Id.; Stanhope, Wis.2d at 280 N.W.2d (quoting Holytz City N.W.2d at 512 at 719. Milwaukee, 17 Wis.2d N.W.2d Winston, 328; Sambs, (1962)); Stanhope, at 636 S.W.2d at 90 Wis.2d 366-68, 375-77, 509-10, at N.W.2d at 717. Wis.2d 293 N.W.2d 3«7 Further, concerning “cap” legislatures periodically on dam- their review statute, ages governmental immunity in its statutory provisions which limit tort re- Supreme Court stated: the Nevada coveries.73 quite impossible to devise It seems to us assuming This Court errs in empir- without equality in the a scheme awards ical evidence that it is in a position better damages. damages The “total sus- than the to consider the finan- tained” a claimant is an uncertain integrity cial of the state and the reason- in any amount case. That amount is monetary ableness of limitations available be, negotiation or trial declares it to what necessary to strike the balance between and the variation in result for substan- “sufficient” and “insufficient” recovery in tially similar A remarkable. future cases. percentage damages of the “total sus- legal determined, aWhen distinction is equally tained” is uncertain. In the na- be, as no one doubts that it between things, equality ture of of treatment as night day, maturity, childhood and amount of cannot be extremes, any other point has to be achieved, view, equal pro- and in our drawn, grad- fixed or a line has to be bearing upon tection clause has no ually picked decisions, out successive subject. It was within change to mark where place. takes power recovery.71 to limit regard Looked at itself without such, espoused view the views necessity point behind it the line or

Case Details

Case Name: Condemarin v. University Hospital

Court Name: Utah Supreme Court

Date Published: May 1, 1989

Citation: 775 P.2d 348

Docket Number: 20602

Court Abbreviation: Utah