concurring: I concur with the result reached by the majority but disagree on the rationale employed in the majority opinion.
Section 5 of the Kansas Bill of Rights provides:
“The right of trial by jury shall be inviolate.”
Section 18 of the Kansas Bill of Rights provides:
“All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
The majority opinion has the effect of lumping together the right to trial by jury on the question of liability and the remedy to be afforded if liability is established, and then freezing the lump in a common-law time warp. I find no legal basis for including the scope of the remedy in the right to a jury trial. I believe the scope of the remedy to be afforded is a matter of legislative determination without the quid pro quo requirement affixed by the majority. As noted in the majority opinion, a number of other states have upheld damage caps without a quid pro quo requirement.
Section 5 applies to all cases in which jury trials are mandatory — both civil and criminal. It applies equally to plaintiffs and defendants. No one seriously claims the legislature cannot alter permissible sentence lengths and fines because to do so would violate article 3 of the Kansas Constitution. The penalty or remedy facing defendants violating criminal statutes is possible loss of liberty and/or property. The penalty or remedy facing defendants violating civil law is loss of property. Lumping the penalty or remedy with the means of determining liability, if valid, would, of necessity, be equally applicable under article 3 to all parties in civil and criminal jury trials.
The majority opinion states that the award of damages is to make the injured party whole by restoring him or her to the position he or she was in prior to the injury. The right to trial *364by jury is then held to include the right of the jury to fix damages. By logical extension, this rationale would have to include actual recovery of the damages found by the jury. Limitations on collection would, therefore, be caught in the same common-law time warp. Presumably, any legislation which exceeds common-law limitations on collections of judgments would violate article 3 absent a quid pro quo. Many limitations on garnishments, executions, etc., would thus be unconstitutional as impairments of the injured party’s right to be made whole. The federal bankruptcy act, itself, would be a major violation of the right to trial by jury.
The utilization of comparable fault or contributory negligence standards has a major bearing on the outcome of many cases. A negligent injured party has no recovery under contributory negligence standards. In a pure comparative fault jurisdiction, he or she recovers those damages caused by others. In Kansas, he or she recovers if his or her negligence is less than fifty percent. The standard to be applied is determined by the legislature. There is no serious argument that any particular standard is in a time warp.
The authority of the legislature to modify statutes of limitation is subject only to some minor restrictions. Punitive damages, treble damages, etc., are wholly within the legislative prerogative. What is an appropriate remedy for a wrong changes with the times.
Jury trials were totally eliminated by workers compensation laws. The quid pro quo requirement has validity here, as the right to have liability determined by a jury was removed — not just how damages were to be computed.
Much of what has previously been said applies equally to section 18. It speaks of remedy by due course of law. It does not require any particular remedy. “Due course of law” has no bearing on the issue herein.
In conclusion, I concur with the result reached in the majority opinion. I disagree that a finding of quid pro quo was necessary to reach that result.