(dissenting).
It is difficult to write a dissent to an opinion that relies upon rhetoric rather than reason to support the result it so fervently desires to reach. Talk of locks and shackles on our courtroom doors and of stamping out our citizens’ causes of action makes good newspaper copy, but it is hardly the currency of serious analysis.
In McMacken v. State, 320 N.W.2d 131 (S.D.1982), we carefully considered an attack upon the constitutionality of SDCL 15-2-9 based upon Article VI, § 20, the open courts provision of our state constitution. We reaffirmed this court’s decisions in Simons v. Kidd, 73 S.D. 41, 38 N.W.2d 883 (1949), and Behrns v. Burke, 89 S.D. 96, 229 N.W.2d 86 (1975), to the effect that Art. VI, § 20 guarantees a right of access to the courts for redress only of causes of action recognized under common law or by statute and does not in and of itself create causes of action. A number of other courts, see, e.g., Lamb v. Wedgewood South Cory., 308 N.C. 419, 302 S.E.2d 868 (1983), and cases cited therein, have reached the same conclusion under similar constitutional provisions.
The consequences of today’s opinion are potentially far broader than the opinion itself intimates. For example, does the holding in effect overrule our recent decision in Grosz v. City of Sioux Falls, 346 N.W.2d 446 (S.D.1984)? Does it overrule our decision in Hunt v. Hunt, 309 N.W.2d 818 (S.D.1981) (in which we purported to judicially abolish the common law tort of criminal conversation)? (Indeed, perhaps Justice Henderson and I will be forever foreclosed from reaffirming our views that the tort of alienation of affections should also be abolished.) Does today’s opinion render a sinking morass the “safer legal ground” to which municipal employees may seek to flee to avoid the imposition of personal liability? See Schaub v. Moerke, 338 N.W.2d 109, 112 (S.D.1983) (Henderson, J., concurring specially). Open courts forsooth!
With respect to the purported statutory basis of liability that the majority holds survives the effect of the statutes in question, I need only quote the response of the Court of Appeals for the Eighth Circuit to a similar contention made in a case arising out of the accident that gave rise to these actions:
The appellants attempt to distinguish this case on the basis that their cause of action is not based simply on a common law negligence theory, but on violation of South Dakota safety statutes, which they assert is a wrong recognized by the law of the land. We find this distinction to be without merit. The effect of enactment of SDCL 15-2-9 and 15-2-12.1 was the abrogation of appellants’ causes of action before they accrued. Therefore, any wrongs done to appellants were not recognized as wrongs by the law of the land.
Van Den Hul v. Baltic Farmers Elevator Co., 716 F.2d 504, 512 (8th Cir.1983).
*428I would point out that since the date of our decision in McMacken, the following courts, and perhaps others, have upheld the validity of statutes similar to those in question here: Yarbro v. Hilton Hotels Corp., 655 P.2d 822 (Colo. 1982); Beecher v. White, 447 N.E.2d 622 (Ind.App.1983); Klein v. Catalano, 386 Mass. 701, 437 N.E.2d 514 (1982); Lamb v. Wedgewood South Corp., supra.*
If we were free to strike down statutes willy-nilly on the basis of our personal feelings, the result of the proposed opinion might be justifiable. Once this court, or any other court for that matter, starts down that road, however, I see no end in sight. Although it might well be a heady, enjoyable experience to correct what we may perceive to be unwise, ill-conceived legislation, I see no warrant for us to do so in the absence of palpably unconstitutional legislative action. The judiciary should not have to do penance for the sins of the legislature.
It will be interesting to see whether the life span of today’s majority opinion will be as ephemeral as the composition of the court that produced it. However long lived today’s interment of McMacken, the decision will do nothing to add to this court’s reputation for constancy, consistency, and reasoned elaboration.
I would affirm the summary judgments.
In addition to the post -McMacken decisions cited in footnote 3 of the majority opinion, supra, it should be noted that the Supreme Court of Rhode Island recently struck down that state’s products liability limitations statute. See Kennedy v. Cumberland Engineering Co., Inc., 471 A.2d 195 (R.I.1984). Needless to say, I agree with the dissenting opinion in that case.