Laney v. Fairview City , 453 Utah Adv. Rep. 40 ( 2002 )

DURHAM, Chief Justice:

¶ 1 This case addresses whether Utah Code Ann. § 63-30-2(4)(a) (Supp.2000) violates article I, section 11, the “open courts” clause, of the Utah Constitution. The district court held that Fairview City (the City) is immune from suit for its alleged negligence under the Utah Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to -38 (1997 & Supp.2000).¹ We hold that the 1987 amendment, declaring all acts of municipalities to be governmental functions, is unconstitutional as applied to municipalities operating electrical power systems. We reverse the summary judgment of the trial court and remand for a trial on the merits without any defense of governmental immunity.

BACKGROUND

¶ 2 The following facts were undisputed in the trial court. On September 16,1991, John Laney was electrocuted and killed while moving irrigation pipe. The thirty-foot aluminum water irrigation pipe that Laney was carrying came into contact with, or within arcing distance of, high voltage power lines. The power lines were owned by the City.

¶ 3 Accordingly, Lane/s wife and children brought a wrongful death action against the City claiming, inter alia, that the City was negligent for failing to maintain the power lines in a safe condition. The Laneys complain that the power lines did not meet minimum safety standards because they were too low to the ground. They also allege that the lines were unsafe because they were not insulated and did not contain warnings.

¶ 4 The City moved for summary judgment asserting that the decision whether or not to improve the power lines was a discretionary function entitled to immunity under Utah Code Ann. § 63-30-10(1) (1997). Discretionary function immunity is an exception to a waiver of sovereign immunity within the Utah Governmental Immunity Act. The Utah Governmental Immunity Act declares that all governmental entities are immune from suit for any injury which results from the exercise of a “governmental function.” See Utah Code Ann. § 63-30-3(l).² The term governmental function is broadly defined in section 63-30-2(4)(a), and by virtue of that broad definition, the statute cloaks governmental entities with immunity for a wide range of activities.³ However, Utah Code Ann. § 63-30-10 waives sovereign immunity “for injury proximately caused by a negligent act or omission.” Then, subsection (1) creates an exception to this waiver for negligence and immunizes governmental entities for “the exercise or performance or the failure to exercise or perform a discretionary function.... ” Utah Code Ann. § 63-30-10(1).

¶ 5 The district court agreed that the City was entitled to immunity for its decision to not improve the power lines and granted the City’s motion for summary judgment. Following the framework we set forth in Ledfors v. Emery County School District, 849 P.2d 1162, 1164 (Utah 1993),⁴ the district court concluded that the City’s operation of its municipal power system was a governmental function as defined by Utah Code Ann. § 63-30-2(4)(a). The court also concluded that immunity was waived under section 63-30-10 because plaintiffs’ claim against the City was for negligence. Finally, the district court concluded that the City’s decision to keep its power lines at the height and condition they were in at the time of Mr. Laney’s death constituted the exercise of a discretionary function under Utah Code Ann. § 63-30-10(1), an exception to the waiver for negligence, rendering the City immune from suit under the Utah Governmental Immunity Act.

¶ 6 Plaintiffs appeal, claiming that Utah Code Ann. § 63-30-2(4)(a) is unconstitutional because it violates article I, section 11, the open courts clause, of the Utah Constitution. Plaintiffs further maintain that the district court erred in concluding that the City is entitled to discretionary function immunity under Utah Code Ann. § 63-30-10.

ANALYSIS

¶ 7 We note the long-standing principle that “unnecessary decisions are to be avoided and that the courts should pass upon the constitutionality of a statute only when such a determination is essential to the decision in a case.” Hoyle v. Monson, 606 P.2d 240, 242 (Utah 1980). If the district court erred in concluding that the City was immune from suit under the statute, there will be no need to address the constitutional issue before us. We therefore address the statutory interpretation question first.

I. DISCRETIONARY FUNCTION IMMUNITY UNDER THE UTAH GOVERNMENTAL IMMUNITY ACT

¶ 8 The appellants argue that the district court erred in granting the City’s motion for summary judgment based on its conclusion that the City’s omissions to not increase the height of the power lines, to not insulate the lines, and to not provide warning signs near the lines, were immune from suit under the Utah Governmental Immunity Act.

A. Standard of Review

¶ 9 Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c). When reviewing a grant of summary judgment, as we do here, we review the district court’s conclusions of law for correctness. See Taylor v. Ogden Sch. Dist., 927 P.2d 159, 162 (Utah 1996). We therefore grant no deference to the district court’s conclusion that the City is entitled to discretionary function immunity under Utah Code Ann. § 63-30-10.

B. Discretionary Function Immunity

¶ 10 Plaintiffs argue that maintenance of power lines is not a discretionary function entitled to immunity under Utah Code Ann. § 63-30-10. Instead, they assert, the City owes a duty to exercise the highest degree of care to protect the public because it undertook to operate and maintain .power lines. The City, on the other hand, contends that decisions to use city funds to improve existing power lines, decisions to raise the height of the lines, to insulate them, or to provide additional warnings, constitute the exercise of a discretionary function. For the reasons that follow, we conclude that the City’s decisions or omissions — regarding the height and insulation of the power lines, and adjacent warning signs — are discretionary functions for which sovereign immunity has not been waived under the Utah Governmental Immunity Act.

¶ 11 As noted above, we must address three • questions in determining whether a governmental entity is immune from suit under the Utah Governmental Immunity Act. First, we must address whether the City’s operation of power lines is a governmental function and therefore immunized from suit by the general grant of immunity contained in section 63-30-3(1). See Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1164 (Utah 1993). Second, if the operation of power lines is a governmental function, we must determine whether some other section of the Act has waived the blanket immunity in section 63-30-3(1). See id. Finally, if the blanket immunity has been waived, we must determine whether the Act contains an exception to that waiver which results in a retention of immunity against the particular claim asserted by the plaintiffs in this case. See id.

¶ 12 We answer the first question, does the City’s operation of power lines constitute a governmental function, in the affirmative. Section 63-30-3(1) states, “Except as may be otherwise provided in this chapter, all governmental entities are immune from suit for any injury which results from the exercise of a governmental function.... ” Utah Code Ann. § 63-30-3G).⁵ Section 63-30-2(4)(a) states that

‘Governmental function’ means any act, failure to act, operation, function, or undertaking of a governmental entity whether or not the act, failure to act, operation, function, or undertaking is characterized as governmental, proprietary, a core governmental function, unique to government, undertaken in a dual capacity, essential to or not essential to a government or governmental function, or could be performed by private enterprise or private persons.

Utah Code Ann. § 63-30-2(4)(a). Under this definition, the City’s operation of power lines is a governmental function, and the City is therefore immunized from suit by the general grant of immunity contained in section 63-30-3(1).

¶ 13 We also answer the second question, does some other section of the Act waive the blanket immunity in section 63-30-3(1), in the affirmative. Utah Code Ann. § 63-30-10 states, in pertinent part:

Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if....

In this section, the legislature has waived the blanket coverage of sovereign immunity outlined in sections 63-30-3(1) and 63-30-2(4)(a) for negligence committed by governmental entities through their employees. In this case, appellants allege the City was negligent, and the Act waives immunity for that negligence.

¶ 14 The third question, does the Act contain an exception to the blanket waiver of immunity that results in a retention of immunity against the particular claim asserted by the plaintiffs in this case, is more complicated. Utah Code Ann. § 63-30-10 states:

Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury arises out of, in connection with, or results from:

(1)the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused;

(emphasis added). Clearly, this section contains an exception to the waiver of blanket immunity, and the exception results in a retention of immunity for discretionary functions. Therefore, to determine whether the City has immunity against appellants’ claims, we must determine whether the allegedly negligent decisions or omissions of the City constitute discretionary functions under the Act.

¶ 15 The test used to determine whether a governmental act, omission, or decision qualifies as a discretionary function under section 63-30-10(1) requires a four-part inquiry. See Keegan v. State, 896 P.2d 618, 624 (Utah 1995). An affirmative response to each inquiry leads to the conclusion that the action under review is a discretionary function. While the test was most recently applied by this court in Keegan, it first appeared in Little v. Utah State Division of Family Services, 667 P.2d 49, 51 (Utah 1983), and includes the following:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?

(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?

(3) Does the. act, omission, or decision' require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?

(4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?

See Keegan, 896 P.2d at 624 (Utah 1995); accord Trujillo v. Utah Dep’t. of Transp., 1999 UT App. 227, ¶ 27, 986 P.2d 752; Little, 667 P.2d at 51 (quoting Evangelical United Brethren Church of Adna v. State, 67 Wash.2d 246, 407 P.2d 440, 445 (1965)).

¶ 16 Although a party’s entitlement to discretionary function immunity is a question of law, a court must have sufficient facts before it to determine whether the challenged act, omission, or decision satisfies the four-part Little test. See, e.g., Rocky Mountain Thrift v. Salt Lake City, 784 P.2d 459, 464 (Utah 1989); Hansen v. Salt Lake County, 794 P.2d 838, 840 (Utah 1990); Trujillo, 1999 UT App. 227 at ¶¶ 28, 43, 986 P.2d 752. The record in the present case contains sufficient facts to apply the Little test.

¶ 17 We first note that the discretionary function analysis in Little depends on which specific act, omission, or decision is being challenged by the plaintiffs, see, e.g., Rocky Mountain Thrift, 784 P.2d at 461-64, Trujillo, 1999 UT App. 227 at ¶¶ 29-37, 986 P.2d 752, and whether it involves a basic governmental policy, program, or objective. The decisions or omissions challenged by the plaintiffs in this case are those that resulted in not raising the height of the power lines, not insulating the power lines, and not providing further warnings, all pertinent to the safety of members of the public who might encounter the lines. These challenged decisions are closely connected to the basic governmental objective of public safety. Because the plaintiffs’ complaint specifically identifies the City’s failure to adequately make the lines safe as the basis of their action, our analysis is limited to reviewing the challenged decisions in that light. As such, the challenged act, omission, or decision does necessarily involve a basic policy, program, or objective, namely public safety, 'and the first part of the-Little inquiry is answered affirmatively.

¶ 18 Second, we conclude that the questioned omissions or decisions regarding the safety of the power lines are essential to the realization or accomplishment of the policy, program, or objective identified here— public safety. Again, because the plaintiffs allege the City failed to adequately warn or make the power lines safe by raising or insulating them, “that policy, program, or objective” subject to analysis is the promotion of public safety. Little, 667 P.2d at 51. Decisions touching the safety of the power lines clearly affect the accomplishment of the objective of public safety. Consequently, part two of the Little inquiry is also answered in the affirmative.

¶ 19 Third, the challenged act, omission, or decision regarding the power lines requires the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved. Although we are not presented with evidence regarding whether the City actually conducted on-site inspections, analyzed various safety factors, or conducted, collaborative review of its decision not to raise the power lines, we think that the decision required, at a minimum, a basic cost-benefit analysis and exercise of financial expertise and judgment by the City. This is sufficient under part three of the Little test.

¶20 Finally, we also answer the fourth question in the affirmative. Under Utah Code Ann. § 10-8-14 (Supp.2001), the City is authorized to own and operate an electric utility. Id. see also Utah Const, art. XI, § 5. Thus, the City has the requisite authority to decide whether or not to raise the lines or otherwise make them more safe.

¶ 21 Having answered all four parts of the Little test in the affirmative, we conclude that the challenged decisions or omissions were discretionary functions. Our review of other Utah case law also supports the conclusion that the City’s decisions not to increase the height of the power lines, not to insulate the lines, and not to provide warning signs, are discretionary functions entitled to immunity under the Act.

¶ 22 First, the City’s decisions not to raise, insulate, or place warnings on its power lines are not operational decisions involving routine, everyday matters. Rather, those are broad policy decisions requiring evaluation of broad policy factors which take place at the policy-making level, and such decisions are generally entitled to discretionary function immunity. See, e.g., Bigelow v. Ingersoll, 618 P.2d 50, 53 (Utah 1980) (stating that “discretionary function [immunity] under § 63-30-10(1) is confined to those decisions and acts occurring at the ‘basic policy making level,’ and is not extended to those acts and decisions taking place at the operational level, or, in other words ■... those which concern routine, everyday matters, not requiring evaluation of broad policy factors’ ” (quoting Frank v. State, 613 P.2d 517, 520 (Utah 1980) (quoting Carroll v. State Rd. Comm’n, 27 Utah 2d 384, 388, 496 P.2d 888, 891))); Frank, 613 P.2d at 520 (indicating that even though almost all acts require some degree of discretion, the discretionary function exception immunizes governmental entities from suit for “those decisions and acts occurring at the ‘basic policy-making level,’ and not extended to those acts and decisions taking place at the operational level, or, in other words,’ ... those which concern routine, everyday matters, not requiring evaluation of broad policy factors’ ”) (quoting Carroll, 27 Utah 2d at 389, 496 P.2d at 891); Carroll, 27 Utah 2d at 389-90, 496 P.2d at 891-92 (finding that “the decision of the road supervisor to use berms [to prevent accidents on a roadway] was not a basic policy decision essential to the realization or accomplishment of some basic governmental policy, program, or objective [because] his decision did not require the exercise of basic policy-evaluation, judgment, and expertise on the part of the Road Commission [and because] [h]is determination may properly be characterized as one at the operational level of decision making”); see also, Evangelical United Brethren Church, 407 P.2d at 444 (stating that “the distinction between discretionary and nondiscretionary administrative acts, omissions, or decisions may well lie in the determination of whether such was done or made at the planning or operational level”) (citing Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953)).

¶ 23 Second, our conclusion that the City’s decision regarding its power lines is entitled to discretionary function immunity is consistent with cases that have generally held that decisions balancing the need for safety improvements against limited governmental funding are entitled to discretionary function immunity. See Keegan v. State, 896 P.2d at 624-26 (applying the four part Little test and concluding that the Utah Department of Transportation’s decision not to raise a concrete traffic barrier was a discretionary function because it “resulted from a considered weighing of the costs and benefits of certain safety and construction policies and which involved the exercise of UDOT’s judgment and discretion”); Velasquez v. Union Pac. R.R., 24 Utah 2d 217, 218-19, 469 P.2d 5, 6 (1970) (finding the Utah Public Service Commission was immune from suit for its (1) failure to require the railroad to construct and maintain safety devices and (2) failure to establish a program to discover dilapidated signs and indicating that the plaintiff should not necessarily recover “simply because a better warning signal could or should have been installed”); Duncan v. Union Pac. R.R., 790 P.2d 595, 601-02 (Utah Ct.App.1990) (concluding that UDOT was “immune for its failure to do more than minimal warning and control,” and stating, “Every highway could probably be made safer by further expenditures, but we will not hold UDOT (and implicitly, the legislature) negligent for having to strike a difficult balance between the need for greater safety and the burden of funding improvements”), aff'd 842 P.2d 832 (Utah 1992); Gleave v. Denver & Rio Grande W. R.R., 749 P.2d 660, 668-69 (Utah Ct.App.1988) (holding that “UDOT’s failure to install different safety signals or devices at the subject crossing was a purely discretionary function within the meaning of section 63-30-10(l)(a)” because (1) the challenged omission, failure to install different safety devices, involved the basic governmental objective of promoting public safety; (2) evaluating numerous railroad crossings and assigning priorities for safety signal upgrades was essential to the realization of public safety, especially in light of the fact that unlimited funds were not available to upgrade all needy crossings at once; (3) the decision whether to improve the traffic signals was the exercise of basic policy judgment because UDOT conducted on-site inspections, analyzed several safety factors, and participated in collective decision-making; and (4) UDOT was statutorily empowered to supervise and regúlate the safety of the railroad crossings).

¶24 It is undisputed that the standards used in the electrical power industry in Utah follow those set forth in the National Electric Safety Code (“NESC”). Section 232 of the 1987 edition of the NESC, which was in effect at the time of Mr. Laney’s accident, provides that power lines over farm land be at least eighteen feet above the ground. The power line at issue was over twenty-eight feet above the ground, thereby exceeding the standard set forth by the NESC. The NESC further provides that power lines are insulated when they are separated from other conducting surfaces by air space, as was the case here.

¶ 25 We wish to emphasize, however, that it would not be within a municipality’s discretion to construct electrical systems and power lines that do not meet industry safety standards. Here, the City’s electrical system, including the power line that caused Mr. Laney’s death, met all applicable industry safety standards. Therefore, a decision by the City to not improve its power lines above industry standards is discretionary and is entitled to discretionary function immunity under the Act.

¶26 In sum, we conclude that the trial court was correct in concluding that the City was immune from suit under the Act. The alleged negligence of the City in failing to raise the height of, insulate, or provide further warnings on its power lines, resulted from the performance of discretionary functions under the Little test. Consequently, the Act immunizes the City from suit for the negligence alleged by the plaintiffs.

II. CONSTITUTIONALITY OF UTAH CODE ANN. § 63-30-2(4)(a)

¶ 27 Because we find that the City’s maintenance of the power lines constitutes a discretionary function within the meaning of the Governmental Immunity Act, we must address the plaintiffs’ challenge to the constitutionality of Utah Code Ann. § 63-30-2(4)(a) (Supp.2000).

¶ 28 As explained above, the Utah Governmental Immunity Act grants the City immunity from suit for its decision not to increase the safety of its power lines. This is, in part, because the City’s operation of its municipal power system is a governmental function under Utah Code Ann. § 63-30-2(4)(a). Accordingly, absent a statutory or constitutional provision to the contrary, the City is entitled to immunity from suit regarding the maintenance of its power lines, a governmental function. Plaintiffs contend that the district court erred in determining that the City is entitled to claim immunity because section 63-30-2(4)(a)’s definition of “governmental function” renders it unconstitutional. Article I, section 11 of the Utah Constitution provides:

All courts shall be open, and every person, for an injury done to him in his person, property, or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel any civil cause to which he is a party.

Plaintiffs argue that the Act, specifically section 63-30-2(4)(a), deprives them of their rights guaranteed by article I, section 11, the open courts clause.

A. Berry v. Beech Aircraft Analysis

¶ 29 The State urges this court to abandon nearly a century of precedent, arguing for an interpretation that would virtually write article I, section 11 out of the Utah Constitution. Specifically, the State asks the court to overrule Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985), and the principles explained therein. • As early as 1915, only twenty years after Utah’s constitution was adopted, this court acknowledged that article I, section 11 placed “a limitation upon the Legislature to prevent that branch of the state government from closing the doors of the courts against any person who has a legal right which is enforceable in accordance with some known remedy.” Brown v. Wightman, 47 Utah 31, 34, 151 P. 366, 366-67 (Utah 1915). Thus, the State’s assertion that the provision speaks only to the judicial branch and not to the legislative branch, is a novel departure indeed. Berry did not create a new constitutional rule; rather, it developed and articulated a test by which the rule might be applied.

1. Plain Meaning and Historical Purpose

¶ 30 In arguing for article I, section 11 to be treated solely as a procedural right, the State disregards the plain meaning and historical purpose of Utah’s open courts provision. Throughout our state’s history, this court has consistently recognized that the plain meaning of the guarantee “impose[s] some substantive limitation on the legislature to abolish judicial remedies in a capricious fashion.” Craftsman Builder’s Supply v. Butler Mfg., 1999 UT 18, ¶ 36, 974 P.2d 1194 (Stewart, J., concurring) (emphasis added).

¶ 31 In general, open courts provisions' in Utah and other states have served two principal purposes:

First, they were intended to help establish an independent foundation for the judiciary as an institution. See Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or. L.Rev. 1279 (1995); Industrial Comm’n v. Evans, 52 Utah 394, 174 P. 825, 831 (1918) (“[T]he question of ultimate legal liability cannot be withdrawn from the courts.”). Second, open courts or remedies clauses were intended to grant individuals rights to a judicial remedy for the protection of their person, property, or reputation from abrogation and unreasonable limitation by economic interests that could control state legislatures. See Schu-man, 65 Temp. L.Rev. at 1208; Berry, 717 P.2d at 675.

Craftsman, 1999 UT 18 at ¶ 36, 974 P.2d 1194 (Stewart, J., concurring) (emphasis added).

¶ 32 Our holding in Berry, which recognizes the substantive protection of article I, section 11, is consistent with these general purposes. More importantly, however, we should rely on our own state history and precedent to determine the purpose and meaning of article I, section ll’s protection. See David Schuman, The Right to a Remedy, 65 Temp. L.Rev. 1197, 1220 (1992) (“[T]he best interpretation of the remedy guarantee ^[6] in one state may differ radically from the best interpretation in another state, even when the wording of the two provisions is identical.”). “[A] text’s meaning cannot be separated from its speaker, its audience, its genre — from its context.” Id. (citing Stanley Fish, Working on the Chain Gang: Interpretation in Law and Literature, 60 Tex. L.Rev. 551 (1982)). Our inquiry should focus on what the open courts provision means in our own constitution. See Schuman, 65 Temp. L.Rev. at 1220 (“[T]he appropriate inquiry is not, ‘What does the remedy guarantee mean?,’ but ‘What does the remedy guarantee mean in the constitution of State X?’ ”).

¶ 33 Although some states with open courts provisions have construed them' to guarantee only procedural rights and court access, such a construction has never been accepted in Utah. Article I, section ll’s constitutional guarantee has been interpreted to protect substantive rights to remedies throughout our state’s history. The open courts provision was adopted, as part of the original Constitution itself, at the end of the nineteenth century, during a period when abuse had generated concern and distrust of the legislative branch in numerous states. Craftsman, 1999 UT 18 at ¶ 50, 974 P.2d 1194 (Stewart, J., concurring). That abuse included misuse of political influence by railroads and other corporate interests, who convinced state legislators to favor private interests through legislative enactments insulating them from the general laws. Id. (citing Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 811-12 (Ky.1991); Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961, 971-73 n. 9 (1984) to demonstrate origin of open courts provisions and industrial history of certain states around the turn of the century). To prevent this type of political abuse, “the Framers, relying on legal principles that were centuries old, included constitutional protections against such evils.” Id.

¶ 34 Utah’s constitution, in fact, contains numerous provisions reflecting an intent to limit legislative power and prevent. special interest abuse. In addition to basic provisions for due process, uniform operation of the laws, and equality in civil and political rights, we find in the Utah Constitution the following sections, clearly motivated by a wariness of unlimited legislative power:⁷

1. Article I, section 23 “No law phall be passed granting irrevocably any franchise, privilege or imnaunity.”

2. Article VI, section 22 (single-subject rule) “Except general appropriation bills and bills for the codification and general revision of laws, no bill shall be passed containing more than one subject, which shall be clearly expressed in its title.”

3. Article VI, section 26 “No private or special law shall be enacted where a general law can be applicable.”

4. Article VI, section 28 “The Legislature shall not delegate to any special commission, private corporation or association any power to make, supervise or interfere with any municipal improvement, money, property or effects; ... to levy taxes, to select a capítol site, or to perform any municipal functions.”

5. Article VII, section 29 “The Legislature shall not authorize the state, or any county, city, town, township, district or other political subdivision of the State to lend its credit or subscribe to stock or bonds in aid of any railroad, telegraph or other private individual or corporate enterprise or undertaking.”⁸

6. Article XVI, section 5 “The right of action to recover for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, except in cases where compensation for injuries resulting in death is provided for by law.”⁹

¶ 35 Commenting on Utah’s legislative article (Article VI), historian Jean Bickmore White points out that it

is typical of the late-nineteenth-century constitutions written by its western neighbors _It ... mandated that the legislature should not enact special laws ... where general laws could apply-but went on to list eighteen specific cases where there should be no private or special laws (Art. VI, sec. 26). It specified that (except for general appropriation bills and bills for the codification and general revision of laws) no bill should contain more than one subject-a provision that made the amendment of entire articles difficult.

“White at 64.

¶ 36 It is very clear from Professor White’s history and from the discussions recorded in the Official Report of the Proceedings and Debates of The Constitutional Convention for the State of Utah, see Proceedings: Constitutional Convention in 'passim (Star Printing Co. 1898), that Utah’s framers were knowledgeable about contemporary constitutional debates, and sensitive to economic and individual rights issues common in sibling states. That being so, it is entirely plausible that the inclusion of a specific remedies provision in article I, section 11 was deliberate, especially given its textual differences from other contemporary constitutions. See Craftsman, 1999 UT 18 at ¶ 49, 974 P.2d 1194 (Stewart, J., concurring) (citing Mont. Const, art. II, § 16; Wash. Const, art I, § 10 (“Justice in all cases shall be administered openly, and without unnecessary delay.”)). Because Utah’s framers did not follow limited models like these, “[ojbviously, they did not intend to so limit the rights guaranteed to the citizens of Utah.” Id.

¶ 37 Focusing entirely on the “procedural” content of the language found in section 11, as the State does, is misleading. Constitutional language must be viewed in context, meaning that its history and purpose must be considered in determining its meaning. The language that a remedy shall be had by “due course of law” describes the law by which the remedy is secured, as well as the procedural guarantees also protected by this section. Article I, section 7 already contains a due process provision guaranteeing procedural rights. Thus, if the State’s reading of section 11 is correct, section 11 is redundant and mere surplusage — it has no constitutional role or function that is not already performed by section 7. That view has never been embraced by any Utah decision.

¶ 38 This court has always adhered to the view that article I, section 11 imposes some limits on the legislature, a view that former Justice Zimmerman placed in context as follows:

[T]he very act of drafting a constitution such as ours, which does not bestow unlimited power on the legislature and which does reserve certain rights to the people, constitutes a recognition that there must be some limits on the legislature, that some interest of the people deserve special protection in the maelstrom of interest group politics that is the legislative process.

Condemarin v. Univ. Hosp., 775 P.2d 348, 368 (Utah 1989) (Zimmerman, J., concurring in part) (emphasis added).¹⁰

¶39 That section 11 is redundant should not be assumed. Hans Linde articulated a cogent and compelling distinction between remedies clauses with due process language and “due process of law” provisions like Utah’s article I, section 7. The latter, he points out, provide a “prescription ... against official deprivations of ‘life, liberty, or property,’ ” and the former are “directed against the denial of a legal remedy to one who has a claim, arising from ‘injury done him in his person, property, or reputation’ that has its legal source outside [of] this [remedies] section itself.” Hans Linde, Without “Due Process”, 49 Or. L.Rev. 125, 136 (1970). Linde goes on to observe:

The two types of guarantees were not confused with each other when the early constitutions were drafted. Other states ... adopted them both and most state constitutions today contain both a ‘remedies’ clause and a ‘due process’ ... clause.

Id. at 138 (footnote omitted).

¶ 40 Justice Zimmerman’s concurring opinion in Condemarin further acknowledged and discussed “the wisdom of including article I, section ll’s guarantee in Utah’s basic charter.” Id. He explained:

The constitution’s drafters understood that the normal political processes would not always protect the common law rights of all citizens to obtain remedies for injuries. See Berry, 717 P.2d at 676; cf. Developments in the Law: The Interpretation of State Constitutional Rights, 95 Harv. L.Rev. 1324, 1498-1502 (1982) (protection of majority from politically powerful minorities as an approach to state constitutional interpretation); Note[,] State Economic Substantive Due Process: A Proposed Approach, 88 Yale L.J. 1487, 1498 (1979) (perfunctory judicial review is inadequate to protect against special interest legislation).

Condemarin, 775 P.2d at 367 (Zimmerman, J., concurring in part). Justice Zimmerman noted that “[i]n declining to so characterize the guarantee .of a remedy of injuries [as ‘fundamental’], I do not think we intended to denigrate the importance of the rights protected from legislative abridgement by article 1, section 11.” Id. at 366-67 (emphasis added).

2. Substantive Protection Before Berry

¶ 41 Berry continues a long tradition in Utah’s courts limiting the power of the legislature to abrogate remedies. See Craftsman, 1999 UT 18, ¶ 64, 974 P.2d 1194 (Stewart, J., concurring). Only one former justice of this court — in an opinion in which no other justice joined — has so far asserted the contrary. See id. at ¶ 108 (Zimmerman, J., concurring). The substantive protection found in article I, section 11 has been recognized throughout the history of the state of Utah. In Brown v. Wightman, as noted earlier, we held that the open courts provision acts as a protection against the legislature from abrogating legal rights to a remedy for injury. See 47 Utah 31, 34, 151 P. 366, 366-67 (1915) (recognizing that open courts provisions are treated “as placing a limitation upon the Legislature to prevent that branch of the state government from closing the doors of the courts against any person who has a legal right which is enforceable in accordance with some known remedy” (emphasis added)).

¶ 42 In Brown the plaintiff was asking the court to use section 11 as a basis for creating a new cause of action where one had not existed previously. See id. In denying the plaintiffs request, the, court recognized that the open courts clause does not give the court the power to create new legal rights. Id. That seems to be an unremarkable proposition and one that in no way undermines the function, explicitly acknowledged in Brown, of section 11 in limiting the legislature’s power to abrogate existing legal rights. See id.

¶ 43 Th.e substantive protection acknowledged by this court in Broum was again recognized in Masich v. United States Smelting, Refining & Mining Co., 113 Utah 101, 191 P.2d 612 (1948). In Masich, discussed at length in Justice Stewart’s opinion in Craftsman, see 1999 UT 18 at ¶¶ 64, 83-86, 974 P.2d 1194, this court, in determining the constitutionality under section 11 of the Occupational Disease Act, explained that although “certain individual rights and remedies can be made to yield to the public good,” “[i]f the legislature were to abolish all compensation and common law rights for negligence of an employer, no contention could reasonably be made that it was a proper exercise of the police power.” Masich, 113 Utah at 125, 191 P.2d at 624 (emphasis added). Rather, “[t]he reverse would be true and pauperism with its concomitants of vice and crime would flourish.” Id. Under the State’s interpretation of article I, section 11, the legislature would be entirely free to “abolish all compensation and common law rights for negligence of an employer,” in the words of the Masich opinion, or indeed of any class of potential defendants with pockets deep enough to mount a successful lobbying campaign. Thus, the State’s argument rejects the explicit position of the Masich court as well as the Brown court that section ll’s remedy clause contains a limitation on the legislature as well as procedural guarantees affecting the courts. The analysis set forth in Berry, by contrast, is completely consistent with Masich, and protects Utah citizens in a way that has been obvious to this court since 1915.

¶44 Likewise, the plain meaning of the open courts clause as a substantive protection is consistent with our case law since Masich. See Craftsman, 1999 UT 18 at ¶¶ 38, 86, 974 P.2d 1194 (Stewart, J., concurring). With the sole exception of Justice Zimmerman’s revised view, the meaning of the open courts provision has been unanimously concurred in by every justice sitting on Article I, section 11 cases before this court. See id. (noting unanimous concurrence of all thirteen justices of this court from Masich, 113 Utah 101, 191 P.2d 612 (1948), to Hirpa v. IHC Hospitals, Inc., 948 P.2d 785 (Utah 1997) (Howe, J., applying Berry analysis in unanimous opinion)). This court has continued to apply the Berry analysis with absolutely no reservations, other than Justice Zimmerman’s recantation of his original views. See, e.g., Craftsman at ¶ 15 n. 5, 974 P.2d 1194 (Russon, J.) (“As the analytical framework of the majority opinion suggests, Justice Russon agrees with the interpretation of the open courts clause as set forth by Justice Stewart in his concurring opinion.”); see also Lyon v. Burton, 2000 UT 19, ¶¶ 82-85, 5 P.3d 616 (following the two-step analysis of Berry, where Justice Zimmerman was the only justice criticizing Berry ). Furthermore, our reading of article 1, section 11 is not in any way unusual or unique in state constitutional law.¹¹

3. Stare Decisis

¶ 45 Under the doctrine of stare de-cisis, “[t]hose asking us to overturn prior precedent have a substantial burden of persuasion.” State v. Menzies, 889 P.2d 393, 398 (Utah 1994). We will not overturn precedent “unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.” Id. at 399 (quoting John Hanna, The Role of Precedent in Judicial Decision, 2 Vffl. L.Rev. 367, 367 (1957)). The State has not met its burden.

¶46 In State v. Menzies, we overruled precedent that had been in place for approximately twenty years. Menzies, 889 P.2d at 399. However, we did not do so lightly, and the decision in that case was justified for three reasons that are not applicable here. First, the precedent in Menzies was “not the most weighty of precedents.” Id. The Berry rule, however, is based on a constitutional mandate, and on a judicial understanding of it, that has provided substantive protection for the citizens of this state since the earliest days of statehood. Second, the precedent rejected in Menzies was established “with little analysis and without reference to authority.” Menzies, 889 P.2d at 399. Berry’s analytical model, by contrast, was established only after a thorough analysis of Utah’s case law regarding the open courts provision and the case law and history of other states with similar provisions. See Berry, 717 P.2d at 674-81. Third, the precedent overruled in Menzies did “not work very well.” Menzies, 889 P.2d at 400. Although the State claims that Berry does not work well, our case law since Berry indicates that it does. The two-part Berry test is a functional method of preserving Article I, section ll’s protections while still permitting rational evolution of tort law.

¶ 47 The State has not demonstrated that Berry was decided wrongly or that any change in conditions makes the application of Berry unsound. Rather than showing that “more good than harm will come by departing from precedent,” Menzies, 889 P.2d at 399, the result of the State’s view can only do harm to our constitution and to the delicate balance of process it creates. The purpose behind the open courts provision is to prevent corporate or other private special interests from unduly influencing the legislature for their own self-interest and at the expense of the public good and the rights of the individual. There has been no change in conditions that would make this any less of a possibility than it was at the time our constitution was drafted or when Berry was decided.

¶ 48 The State’s argument in effect would remove from Utah’s Declaration of Rights any limitation on legislative power to abolish or drastically restrict tort redress. As the dissenting justices observed in Meech v. Hillhaven West, Inc., 238 Mont. 21, 776 P.2d 488 (1989), such a decision would “clean[se] the scalpel for the legislature to cut away unre-strainedly at the whole field of tort redress. Perhaps worse ..., the Court throws in the sponge as a co-equal in our tripartite state government.” Id. at 507. The remedies clause of article I, section 11 was thoughtfully included in Utah’s Declaration of Rights to ensure that the legislature would not be free to arbitrarily eliminate common law rights without establishing significant social and policy need or providing reasonable alternatives for the protection and vindication of those rights. Brown, Masich, Berry and their progeny continue to safeguard this principle.

B. Application of Berry to Subsection 63-30-2(1) (a)

¶ 49 We now turn to the analysis of the constitutionality of subsection 63-30-2(4)(a) using the test set forth in Berry. A legislative enactment that does not eliminate a remedy is not unconstitutional under the open courts provision. See Utah Const, art. 1, § 11. Therefore, we must first determine whether a cause of action has been abrogated by the legislative enactment. If no remedy was eliminated, there is no need to proceed with the Berry test.

1. Abrogation of Remedy

¶50 The State argues in this case that no remedy was abrogated because the 1987 amendment to the Governmental Immunity Act contained in subsection 63-30-2(4)(a) had been enacted four years before Mr. Laney was electrocuted in 1991. The issue under the open courts provision, however, is not whether a statute has already been enacted before a claim arises, but rather whether the statute abrogates a cause of action existing at the time of its enactment.¹² See Day v. State, 1999 UT 46, ¶¶ 35-38, 980 P.2d 1171 (“The determination of whether a person who is injured in ‘person, property, or reputation’ has been denied a remedy by due course of law should be decided by reference to the general law of rights and remedies at the time that the Legislature abrogates a remedy.”). Thus, the State’s argument that there is no abrogation of a remedy if a statute is already in effect at the time a cause of action arises is inapplicable.

¶ 51 Plaintiffs assert that the 1987 amendment abrogated a remedy because the law in effect prior to the amendment provided individuals negligently injured by municipality-operated power lines with a cause of action against the municipality. Prior to the amendment, the scope of sovereign immunity depended on whether the governmental activity complained of was found to be a “governmental function” or a “proprietary function.” Only those activities determined to be governmental functions were afforded immunity. See Standiford v. Salt Lake City Corp., 605 P.2d 1230, 1235 (Utah 1980) (“The general grant of immunity only extends to injuries resulting from ‘the exercise of a governmental function.... ”). The Act did not define what constituted a governmental function, therefore this court established a standard whereby a function could be considered a governmental function. See id. (“Th[e statute’s] language gives this Court the power to define understandably and logically the term ‘governmental function.’”). In Standiford, we held that a governmental function must be “of such a unique nature that it can only be performed by a governmental agency or that it is essential to the core of governmental activity.” Id. at 1236-37. This definition of the term governmental function was used to determine whether an activity was covered by the Act until the legislature redefined the term in the 1987 amendment.

¶ 52 Plaintiffs argue that the City’s operation and maintenance of a municipal electrical power system would not have been a governmental function under the Standiford standard because maintaining power lines is not “of such a unique nature that it can only be performed by a governmental agency or that ... is essential to the core of governmental immunity.” Id. We agree.

¶ 53 Prior to the 1987 amendment, the operation of an electrical power system was considered a proprietary function, which was not entitled to immunity under the Act. See, e.g., Lehi City v. Meiling, 87 Utah 237, 48 P.2d 530, 546 (1935) (Wolfe, J., concurring)(“[T]he supplying of water, light, and gas were considered as commodities and subjects of commerce and were performed almost altogether in the beginning by private corporations.”); Egelhoff v. Ogden City, 71 Utah 511, 516, 267 P. 1011, 1012 (Utah 1928) (“A municipality which supplies water to its citizens, and charges therefor, is liable for negligence _” (quoting McQuillin, Mun. Corps. § 2880, 5514)); Note, Defining Governmental Function Under the Utah Governmental Immunity Act, 9 J. Contemp. L. 193, 195, n. 10 (1983) (“[T]he supplying of water, light and gas were considered subjects of commerce and had historically been performed by private corporations.”). Under the 1987 amendment, however, a claim against a municipality for negligent maintenance of power lines can be barred by the scope of immunity protection afforded the City. Although the Act waives immunity for governmental functions if there is negligence involved, see § 63-30-10, a plaintiff suing a municipality is now subject to the exceptions to the waiver of immunity, see, e.g., § 63-30-10(1) to (19). By defining a governmental function as any act of a governmental entity, whether or not the activity is characterized as governmental or proprietary, the 1987 amendment effectively grants immunity protection for some activities that were formerly considered proprietary and were not entitled to immunity. Therefore, we find that the 1987 amendment partially abrogated a remedy for a municipality’s negligence. Because a remedy has been abrogated, we proceed with the Berry test to determine the constitutionality of the amendment under the open courts provision.

2. No Reasonable Alternative Remedy

¶ 54 Under the first prong of the Berry analysis, when a remedy has been abrogated, this court first determines whether the legislature has provided a “reasonable alternative remedy ‘by due course of law for vindication of [a plaintiffs] constitutional interest.” Berry, 717 P.2d at 680. In Berry, we held that the substitute benefit “must be substantially equal in value or other benefit to the remedy abrogated in providing essentially comparable substantive protection to one’s person, property, or reputation, although the form of the substitute remedy may be different....” Id. In the instant case, we find no indication that the legislature provided any substitute remedy, nor does the State make this argument. Therefore, we must turn to the second prong of the Berry test.

3. Elimination of Clear Social or Economic Evil

¶ 55 The State contends that even if a remedy was abrogated, the amendment is constitutional under the second prong of the Berry test, which provides that where no alternative remedy has been provided, “abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal-remedy is not an arbitrary or unreasonable means for achieving the objective.” Id.

¶ 56 To determine whether the legislature was justified in abrogating the remedy for negligence of a municipality, we review the legislative history of the 1987 amendment “to determine the reason for its enactment and whether the abrogation was ‘an arbitrary or unreasonable means for achieving’ the elimination of a ‘clear social or economic evil.’” Day v. State, 1999 UT 46, ¶ 44, 980 P.2d 1171 (quoting Berry, 717 P.2d at 680). In a number of cases we have examined whether in abolishing a remedy the legislature identified a clear social or economic evil, and then employed reasonable means to eliminate the evil.

¶ 57 In Hirpa v. IHC Hospitals, Inc., 948 P.2d at 793, this court held that Utah’s Good Samaritan Act, Utah Code Ann. § 58-12-23 (1996), met the second step of Berry’s two-step analysis. Id. at 793. The analysis in Hirpa assumed that prior to the Good Samaritan Act’s passage, the common law rule that a physician who is under no affirmative duty to assist a person in distress is held to a duty of due care if he or she chooses to respond and render voluntary emergency assistance, applied. Id. at 793. We held that the Good Samaritan Act did not violate the open courts provision by displacing the common law rule because the legislature legitimately characterized the common law rule as a social evil by discouraging physicians from responding to emergencies and rendering medical care in life threatening situations. Id. at 793-94. Hirpa took particular notice of the manner in which the legislature sought to accomplish its goal. The opinion stressed that the provisions of the Good Samaritan Act were narrowly tailored. Id. at 794. Only good faith providers were immunized. Id. The immunity applied only to physicians rendering emergency care and not to care after the emergency had ended. Id. The court continued:

Finally, as we have interpreted the act, it applies only to medical doctors who had no preexisting duty to render aid. Thus,- the act immunizes only true volunteers who render aid even though they are not obligated to do so. We think these limitations indicate the reasonableness of the act. The statute does not cut an unnecessarily wide swath through causes of action against medical providers. Rather, immunity is provided under limited circumstances and only for the purpose of encouraging potentially life-saving emergency medical care. Therefore, we think the act is a reasonable attempt to eliminate a clear social evil and does not violate article I, section 11 of the Utah Constitution.

Id.

¶ 58 In Cruz v. Wright, 765 P.2d 869 (Utah 1988), we similarly considered whether the Married Women’s Act of 1898 violated article I, section 11. We assumed that prior to the passage of the Married Women’s Act,' the common law rule applied allowing a husband a cause of action for loss of consortium against a third party who negligently injured his wife. The Married Women’s Act, as interpreted by this court, eliminated the husband’s remedy. We stressed that under the Berry test, the legislature may eliminate or abrogate a cause of action entirely if there is sufficient reason and the elimination or abrogation is not an arbitrary or unreasonable means of achieving the objective. We wrote:

Therefore, even if a loss-of-consortium cause of action did exist at common law in Utah (and there is no evidence that such an action did exist), that would not prevent the legislature from modifying’or abolishing that cause of action if necessary to serve sufficiently strong legislative ends. Having considered the question, we conclude that the passage of the Married Women’s Act was a reasonable legislative enactment intended and reasonably tailored to place men and women on equal footing with respect to their ability to bring actions for their own injuries and to extinguish the concept that a wife was the property of her husband. If, in the process, the husband’s right to sue for loss of his wife’s consortium, which may have never existed in Utah, was abolished, we conclude that the abolition was not an unreasonable step. ■;

Cruz, 765 P.2d at 871 (citations and footnote omitted).

¶ 59 Cases involving statutes of limitation and statutes of repose have come before this court with mixed results. In an early case, we held that article I, section 11, did not preclude the legislature from prescribing a one-year statute of limitations for the time within which to assail the regularity or organization of an irrigation district. Horn v. Shaffer, 47 Utah 55, 151 P. 555 (1915). In three cases, statutes of repose were struck down because they barred actions without regard to the occurrence of an injury and did not provide a reasonable amount of time to file a lawsuit. No effective and reasonable alternative was provided, and the abrogation of the remedy was held to be arbitrary and unreasonable. Horton v. Goldminer’s Daughter, 785 P.2d 1087 (Utah 1989); Sun Valley Water Beds of Utah, Inc. v. Herm Hughes & Son, 782 P.2d 188 (Utah 1989); Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985).

¶ 60 The Legislature responded to the constitutional requirements outlined in the foregoing cases by enacting a new statute of repose, considered by this court in Craftsman Builder’s Supply v. Butler Manufacturing, 1999 UT 18, 974 P.2d 1194. In that case, we upheld a statute .of repose barring actions against builders after twelve years against an article I, section 11 attack. We held that given the clear social and economic evils identified by the legislature in enacting the statute of repose together with the remote chance of injury or damage after a period of twelve years, the statute was not an arbitrary or unreasonable means of eliminating the stated evils and was constitutional. In summary, in all of the foregoing cases in which the legislation or legal rule under examination passed constitutional muster under the second prong of the Berry test, the abrogation of the remedy was not an “arbitrary or unreasonable means for achieving” the elimination of a clear social or economic evil. Berry, 717 P.2d at 680.

¶ 61 In the only case that we have found which did not involve an act of the legislature, this court abolished the common law tort of criminal conversation and justified its abolition under the open courts provision on the ground that the cause of action was “unfair and bad policy,” “serve[dj” no useful purpose, was subject to abuse, and protected interests that were already adequately served by the tort of alienation of affections. Norton v. Macfarlane, 818 P.2d 8, 16-17 (Utah 1991).

¶ 62 Recently, in Day v. State, 1999 UT 46, 980 P.2d 1171, we relied on the open courts provision to strike down a statute granting immunity for negligent operation of an emergency vehicle in ch'cumstances where immunity had not previously existed. We declared the statute unconstitutional because the legislature was not acting to obviate a “clear social evil” in this state. Id. at ¶ 46 (citation omitted). The sponsor of the legislation had explained that the statute was necessary because of a rash of frivolous lawsuits, “especially in California.” Id. We noted that on its face, the sponsor’s statement did not identify any social, economic, or any other evil in Utah. No evidence was presented that Utah had experienced a rash of similar lawsuits, or was likely to. Id.

¶ 63 In another case, Lee v. Gaufin, 867 P.2d 572, 589 (Utah 1993), three members of this court struck down a statute of repose for minors in medical malpractice cases under article I, section 24, the uniform operation of laws provision. The remaining justices concurred in the result on the ground that the statute violated article I, section 11. Id. at 590 (Zimmerman, J., and Hall, C.J., concurring.) The statute at issue required a minor to bring an action within two to four years after an alleged malpractice injury. Id. at 574-75. However, since a minor has no legal and ordinarily no actual ability to bring an action, the net effect of the statute was to deprive the minor of the cause of action before the minor was legally entitled to assert it. Id. at 578. The two-judge concurrence states:

[T]he legislation’s supporters have not carried their burden of proof. As the majority opinion demonstrates, the justifications advanced for the legislature’s severe abridgment of the right of this narrow category of potential plaintiffs to bring their actions for actual injuries suffered are speculative, to put it charitably. The defenders of this legislation certainly have not shown that the effective elimination of the minor’s legal right to sue for medical malpractice is a reasonable, nonarbitrary means for lowering medical malpractice premiums in Utah. Absent such a showing, they have failed to rebut the presumption of unconstitutionality that attaches to legislation that so severely limits a common law right of action protected by article I, section 11.

Id. at 592.

¶ 64 With that backdrop of the history of cases where we have applied the second prong of the Berry test, we turn to the instant ease. At the outset, we call attention to the strong words of caution in Brigham v. Moon Lake Electric Ass’n, 24 Utah 2d 292, 470 P.2d 393 (1970):

A high tension transmission wire is one of the most dangerous things known to man. Not only is the current deadly, but the danger is hidden away in an innocent looking wire ready at all times to kill or injure anyone who touches it or comes too near to it. For the average citizen there is no way of knowing whether the wire is harmless or lethal until it is too late to do anything about it. Therefore, a high degree of duty is upon one who transmits electricity in high tension wires to see that no harm befalls a person rightfully in proximity thereto when that person is himself guilty of no wrongdoing. In other words, the highest degree of care must be used to prevent harm from coming to others.

Id. at 395 (emphasis added). The 1987 amendment of section 63-30-2(4)(a) eliminates the appellants’ right to sue for Mr. Laney’s wrongful death. The statutory amendment thus sharply limited instances where municipalities operating a power system could be held liable for their negligence.

¶ 65 As we have done in prior cases, we examine the legislature’s purpose in curtailing the previously existing remedy for the negligent operation of a municipal power system. The 1987 amendment was proposed by the Governmental Immunity Task Force of the legislature. The Task Force specifically found:

In the past several years, lawsuits naming governmental entities as defendants have increased dramatically. The large damage awards against governmental entities that plaintiffs have obtained in these lawsuits has made it increasingly difficult for government entities to obtain or afford liability insurance.... If a government entity does not have liability insurance, and a court orders the entity to pay damages,the entity would need to pay the award by taking money from its general fund.

See John L. Fellows, Memorandum to Members of the State and Local Affairs Interim Committee, at 1 (Sept. 4, 1986) (on file with the State of Utah Office of Legislative Research and General Counsel).

¶ 66 According to the legislative history, the task force proposed the 1987 amendment in the “hope that passage of these bills will make it easier or cheaper for a government entity to obtain liability insurance.” Id. Thus the legislative objective appears to have been to make liability insurance more affordable for government entities by reducing liability risks. While that objective is worthy, the legislature swept too broadly when it severely curtailed negligence actions against municipalities operating power systems. The amendment partially abrogated the remedy of persons injured by a breach of the high duty of care imposed on such operators. The legislative concern about increased damage awards against governmental entities is stated in very general terms; no specifics are given. We do not know whether any municipality in this state operating an electrical system has sustained a large damage award. We do know that only a small fraction operate municipal power systems. The general nature of the legislative findings do not show that large damage awards have been made against municipalities in connection with their operation of an electrical power system, or that such operation has been affected in any way by potential liability.

¶ 67 The City generates an annual profit operating its electrical power system. It is not an operation subsidized by tax dollars. The cost of liability insurance, therefore, might not even be paid for by the taxpayers of the City, but rather by consumers of the electrical power, some of whom may live outside the City. Obtaining liability insurance is one of the costs of a power plant doing business, whether it is a private or municipal power system. If the City cannot afford to purchase reasonable amounts of liability insurance to meet its high standard of care, rate increases may be justified and necessary.

¶ 68 Equally disturbing is the broad sweep that the legislature took to meet its objective. In Hirpa v. IHC Hospitals, Inc., 948 P.2d 785, this court emphasized the narrow tailoring of the Good Samaritan Act in upholding its constitutionality. Id. at 794. We noted that only good faith providers were immunized. Id. The immunity applied only during the emergency and not after the emergency had ended. Id. Additionally, it applied only to medical doctors who had no preexisting duty to render aid. Id. We commented:

We think these limitations indicate the reasonableness 'of the act. The statute does not cut an unnecessarily wide swath through causes of action against medical providers. Rather, immunity is provided under limited circumstances and only for the purpose of encouraging potentially lifesaving emergency medical care. Therefore, we think the act is a reasonable attempt to eliminate a clear social evil and does not violate article I, section 11 of the Utah Constitution.

Id.

¶ 69 In the instant case, the legislature has defined all activities of municipalities as governmental action, regardless of their nature. In its sweep, the operation of both a sewer system and a golf course is governmental, along with the operation of a municipal electrical power system, even though the potential for negligently causing death by the municipality is vastly greater in the latter activity and the standard of care is thus much higher.

¶ 70 If large verdicts are vexatious to cities, a reasonable approach might be to create very limited immunities to address specific problems, or to place “caps” on the amount of damages, as the legislature has done elsewhere in the Governmental Immunity Act. Utah Code Ann. § 63-30-34 (Supp.2001). This court has, for example, upheld statutory caps on judgments for damages for personal injury against a governmental entity. McCorvey v. Utah DOT, 868 P.2d 41, 48 (Utah 1993). The immunization of all municipal activities was not justified by any legislative investigation, findings, or relevant history.

¶ 71 We therefore hold that the 1987 amendment is unconstitutional as it applies to municipalities operating electrical power systems. The amendment fails to meet the second prong of the Berry test. No clear social or economic evil has been specifically identified, and the broad sweep of the amendment is arbitrary and unreasonable when applied to the operation of a municipal electrical power system, where a high duty of care is imposed. We express no opinion on the constitutionality of the amendment as applied to other municipal activities since a lower standard of care may apply and different considerations may be relevant.

CONCLUSION

¶ 72 We hold that the acts, omissions,’ or decisions of the City not to raise the height of, insulate, or provide further warnings on its power lines fall within the discretionary function exception of the Utah Governmental Immunity Act, Utah Code Ann. § 63-30-10. We also hold that Utah Code Ann. § 63-30-2(4)(a), under a Berry analysis, violates Article I, section 11, the open courts clause, of the Utah Constitution. We thus reverse the trial court’s summary judgment and remand for a trial on the merits of appellants’ claims.

¶ 73 Justice HOWE concurs in Chief Justice DURHAM’S opinion.

1 . The statutory provisions pertinent to this opinion that were in effect at the time of death of plaintiff’s husband do not differ in any material respect from the current statute.

2 . "Except as may be otherwise provided in this chapter, all governmental entities are immune from suit for any injury which results from the exercise of a governmental function....” Utah Code Ann. § 63-30-3(1).

3 . " 'Governmental function’ means any act, failure to act, operation, function, or undertaking of a governmental entity whether or not the act, failure to act, operation, function, or undertaking is characterized as governmental, proprietary, a core governmental function, unique to government, undertaken in a dual capacity, essential to or not essential to a government or governmental function, or could be performed by private enterprise or private persons.” Utah Code Ann. § 63-30-2(4)(a).

4 ."The Utah Governmental Immunity Act requires that we address three questions in determining whether a governmental entity is immune from suit. First, was the activity the entity performed a governmental function and therefore immunized from suit by the general grant of immunity contained in section 63-30-3. Utah Code Ann. § 63-30-3 (1989) [now codified at section 63-30-3(1)]. Second, if the activity was a governmental function, has some other section of the Act waived that blanket immunity? Third, if the blanket immunity has been waived, does the Act also contain an exception to that waiver which results in a retention of immunity against the particular claim asserted in this case?” Ledfors, 849 P.2d at 1164.

5 . Defendant Fairview City is a governmental entity under the Act. See Utah Code Ann. § 63-30-2(3) (Supp.2000) (stating " 'Governmental entity’ means the state and its political subdivisions as defined in this chapter.”); Utah Code Ann. § 63-30-2(7) (Supp.2000) (stating “ 'Political subdivision' means any county, city, town, ... or other governmental subdivision or public corporation.”).

[6] 6. The terms "open courts provision” and "remedy guarantee" or "remedy provision” are used interchangeably by some commentators to refer to the various forms of open courts provisions found in states with this type of provision in their constitutions.

7 . In her histoiy of Utah’s 1895 constitutional convention, Prof. Jean Bickmore White corn-ments that the document produced "tried to address the needs of a semiarid, capital-starved western territory, but it also reflected the late nineteenth-century concern over the growing powers of corporations and trusts.” Jean Bick-more White, Charter for Statehood: The Story of Utah’s State Constitution, 46 (Univ. of Utah Press 1996) (hereinafter "White”).

8 . "A review of the corporation’s articles in the original constitutions of other western states shows a consistent pattern: future legislatures were to be prohibited from granting special franchises or advantages, and corporations were to be regulated to avoid price-fixing, monopolies, trusts, or other combinations in restraint of trade.” White at 73 & n. 97 (citations to other state constitutions omitted).

9 . The last clause, beginning with "except ...” was added by amendment in 1920, to permit the legislature to fix the amount of compensation (for example in the Workmen’s Compensation or Industrial Act) for wrongful death, while continuing to prohibit the complete abrogation of the right to recover. See generally Halling v. Indus. Comm’n of Utah, 71 Utah 112, 263 P.78 (1927); Henrie v. Rocky Mountain Packing Corp., 113 Utah 415, 196 P.2d 487 (1948).

10 . Justice Zimmerman subsequently changed his mind about article 1, section 11, and urged the court to overturn Berry in Craftsman. Craftsman, 1999 UT 18 at ¶ 108, 974 P.2d at 1224. He was unsuccessful in that effort.

11 . One commentator has observed:

Few courts continue to insist that the open courts provision has no application to legislative actions. Most courts have explicitly eschewed this limitation on the scope of their constitutional right to remedy clause or have done so implicitly by considering the merits of constitutional challenges to statutes based on the clause. They recognize that legislatures may, in proper circumstances, alter or abolish common-law rights and remedies; however, they have also held that the open court provision places limits on the legislature's power. William C. Koch, Jr., Reopening Tennessee’s Open Court Clause: A Historical Reconsideration of Article I, Section 12 of the Tennessee Constitution, 27 U. Mem. L.Rev. 333, 437-38 (1997) (citations omitted).

See, e.g., Sanborn v. Greenwald, 39 Conn.App. 289, 664 A.2d 803, 809 (1995) (holding that, while Connecticut’s open courts provision will not allow the legislature to eliminate remedies absent strong social policy, the legislature is free to place reasonable restrictions on a cause of action, here finding valid the reduction of a statute of repose for attorney malpractice from six to three years); Mitchell v. Moore, 786 So.2d 521, 526 (Fla.2001) (using the Florida open courts provision to invalidate a statute that effectively denied inmates access to the courts because of the statute’s high filing fees); Neher v. Chartier, 319 Or. 417, 879 P.2d 156, (1994) (finding a statute granting immunity to public employees for common-law liability in violation of Oregon’s open courts provision because the statute abrogated a common-law remedy but did not provide a reasonable alternative, nor did the legislature provide a sufficiently strong social policy for the elimination of the remedy); Kyllo v. Panzer, 535 N.W.2d 896 (S.D.1995) (finding a statute that granted immunity to state employees for common-law liability violated South Dakota’s open courts provision because the statute abrogated a common-law remedy but did not provide a reasonable alternative, nor did the legislature provide a sufficiently strong social policy for the elimination of the remedy); Weiner v. Wasson, 900 S.W.2d 316 (Tex.1995) (holding that a statute of limitations that cut off a minor's cause of action before the minor reaches majority age, the age at which the minor can sue on his or her behalf, violates Texas’s open courts provision); cf., Cronin v. Sheldon, 195 Ariz. 531, 991 P.2d 231, 238-39 (1999) (recognizing that Arizona's open courts provision places substantive restrictions on the legislature’s ability to abrogate common-law remedies, but refusing to apply the open courts provision to statutorily created rights).

12 . Although Utah courts have in the past looked to the common law at the time of statehood to determine whether a remedy has heen abrogated, we reiterate that this is not the proper question. See, e.g„ Day v. State, 1999 UT 46, ¶ 35, 980 P.2d 1171 ("[T]he rights protected by Article I, section 11 are not defined by those causes of action that existed in 1896.”). Although the state of the law at the time of statehood may have some bearing on the issue, it is not tire determining factor. See id.