concurring in part and dissenting in part:
I agree that pursuant to 12 O.S.1991 § 1053,1 an action for wrongful death may be maintained by the decedent’s representative2 only if the deceased could have maintained an action if he/she had lived.3 I dissent from the majority’s finding that 12 O.S.1991 § 1094 is constitutional under the Okla. Const, art. 23, § 7’s command5 that “(t)he right of action to recover damages for injuries resulting in death shall never be abrogated ...” (Emphasis supplied.).6 Unless, like Alice,7 we have tumbled into Wonderland, law and common sense tell us that we cannot sustain a statute requiring victims to sue before they are injured. As the Kentucky Supreme Court' recognized in Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 817 (Ky.1991), upholding § 109 is like issuing a one-way ticket to “Topsy-Turvy Land:”
“ ‘Topsy-Turvy Land’, a place described by Judge Jerome Frank in Dincher v. Marlin Firearms Co., 198 F.2d 821, 823 (2nd Cir.1952), where you ‘die before you are conceived, are divorced before you marry, harvest a crop never planted, burn down a house never built, or miss a train running on a non-existent railroad.’ ”8
Because the right to sue for damages for wrongful death is constitutionally guaranteed, we may not send plaintiffs on such a curious journey.
As the majority notes, art. 23, § 79 was adopted from the New York Constitution.10 *1304Like art. 23, § 7, the N.Y. Const, art. 1, § 16 provides that the right of action for injuries resulting in death will never be abrogated.11 Before art. 23, § 7 was adopted, the New York Supreme Court considered the meaning of the terms cause of action and right of action in Graham v. Scripture, 26 How.Pr. 501, 507 (N.Y.1864). The New York Court found that the terms were synonymous — both referring to a right of recovery. In Colton v. Riccobono, 67 N.Y.2d 571, 505 N.Y.S.2d 581, 584, 496 N.E.2d 670, 673 (1986), the New York Court of Appeals found that although the New York Constitution did not create a per se right of access to civil courts, it did prohibit the legislature from abrogating the cause of action for wrongful death. The New York Court held that unless the Legislature removed jurisdiction of wrongful death actions from the civil courts and provided an alternative remedy, that plaintiffs had a right of access to civil courts to plead and prove causes of action for wrongful death.
In Roberts v. Merrill, 386 P.2d 780, 785 (Okla.1963), this Court struck down as unconstitutional a workers’ compensation statute providing that a beneficiary under the Workers’ Compensation Act could not maintain an action that the worker could have brought had he/she lived. The majority attempts to distinguish Roberts on the basis that the worker would not have been barred in Roberts as he is here under § 109.12 When the rationale of Roberts is considered under the facts presented, this is a distinction without a difference. We said in Roberts that the term “right of action” was far from synonymous with “cause of action” and that art. 23, § 7 created no cause of action for death. However, the Court went on to find that art. 23, § 7 prohibited the Legislature from erecting barriers to the effective prosecution of a wrongful death action. We found that the art. 23, § 7 continued to shield workers from all legislative action rendering prosecution of death claims ineffective. We stated:
“ ... Under the proviso added to Art. 23, Sec. 7, we conclude the lawmaking body of this state remains, as before, without authority to ordain that beyond a given interval between injury and death there exists no right to pursue a remedy before some tribunal. The cause of death, regardless of the time when death occurs, presents an adjudicatory fact to be resolved from the evidence, and the Legislature continues to be without power of predetermining causation by means of a statutory fiat_” (Emphasis supplied.)
Here, the majority has sanctioned the Legislature’s action in providing a period after which no cause of action may be brought rather than regulating the time period within which a suit may be maintained after death — it has given the Legislature the authority to predetermine that if death occurs after the ten year period set by § 109,13 that no action may be maintained. This result contravenes the protection constitutionally guaranteed by art. 23, § 7.14
. Title 12 O.S.1991 § 1053 provides in pertinent part:
"A. When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, or his personal representative if he is also deceased, if the former might have maintained an action had he lived, against the later, or his representative, for an injury for the same act or omission. The action must be commenced within two (2) years....”
. Title 12 O.S.1991 § 1054 lists those who may maintain an action for wrongful death. It provides:
"In all cases where the residence of the party whose death has been caused as set forth in the preceding section of this article is at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in the said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased.”
. Evans v. Olson, 550 P.2d 924, 927 (Okla.1976); Haws v. Leuthje, 503 P.2d 871, 874 (Okla.1972); Hill v. Graham, 424 P.2d 35, 37-38 (Okla.1967); Title 12 O.S.1991 § 1053, see note 1, supra.
. Title 12 O.S.1991 § 109 provides:
"No action in tort to recover damages
(i) for any deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property,
(ii) for injury to property, real or personal, arising out of any such deficiency, or
(iii) for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person owning, leasing, or in possession of such an improvement or performing or furnishing the design, planning, supervision or observation of construction or construction of such an improvement more than ten (10) years after substantial completion of such an improvement.”
Although the majority opinion refers to the 1981 statute, the statute remains unchanged since 1978 and now appears in the 1991 codification. Therefore, references are to the 1991 statute.
. Fuller v. Odom, 741 P.2d 449, 453 (Okla.1987).
. The Okla. Const, art. 23, § 7 provides:
"The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, provided however, that the Legislature may provide an amount of compensation under the Workers’ Compensation Law for death resulting from injuries suffered in employment covered by such law, in which case the compensation so provided shall be exclusive, and the Legislature may enact statutory limits on the amount recoverable in civil actions or claims against the state or any of its political subdivisions."
. L. Carroll, Alice In Wonderland (Norton 1971).
. See also, Tablet v. Wallace, 704 S.W.2d 179, 184 (Ky.1986). See also, F. McGovern, “Symposium Products Liability — The Variety, Policy & Constitutionality of Product Liability Statutes of Repose,” 30 Am.U.L.Rev. 579, 617 (1981).
. The Okla. Const, art. 23, § 7, see note 6, supra.
. R. Williams, The Constitution & Enabling Act, p. 301 (Co-Operative Publishing Co., 2nd Ed., 1941).
. The N.Y. Const, art. 1, § 16 provides:
"The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation.”
. Title 12 O.S.1991 § 109, see note 4, supra.
. Id.
.The Okla. Const, art. 23, § 7, see note 6, supra. See also, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 817 (Ky.1991); Berry v. Beech Aircraft Corp., 717 P.2d 670, 685 (1985); T. Olsen, "Oklahoma’s Statute of Repose, Limiting the Liability of Architects & Engineers for Negligence: A Potential Nightmare,” 22 Tulsa L.J. 85, 99 (1986).