(concurring). In this case, the plaintiffs, after expending the time, energy and money necessary to try to a jury a case arising from a tragic accident, obtained against the town judgments, which were statutorily limited to $100,000. The town appealed, and the Appeals Court, for a reason this court holds to have been incorrect, reversed. The plaintiffs petitioned this court for further appellate review, and, after such review was granted and their appeal remained pending, the Legislature enacted legislation which purports to retroactively abolish their cause of action.
I agree with the court that St. 1993, c. 495, § 144, may be retroactively applied to most claims accrued prior to the effective date of the legislation. But I am troubled by certain aspects of the court’s analysis. I think that the court gives short shrift to the value of the plaintiffs’ interest in this case, and that the “balancing test” that as the court applies it does not provide a proper and meaningful balancing of interests. Thus, I write separately to consider the effect the legislation has on the plaintiffs’ rights to due process of law as guaranteed by arts. 1, 10, and 12 of the Declaration of'•Rights. In my view, the plaintiffs come a lot closer to tipping the balance in their favor than the court acknowledges.
The court states, ante at 631: “Our approach to a claim that a statute violates due process protections by abolishing rights retroactively has called for a balancing of interests to determine whether the legislative action is unreasonable. American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 *636Mass. 181, 189-190 (1978).” The court identifies three considerations as guiding this determination: “the nature of the public interest which motivated the Legislature to enact the retroactive statute; the nature of the rights affected retroactively; and the extent or scope of the statutory effect or impact.” Ante at 631, quoting Leibovich v. Antonellis, 410 Mass. 568, 577 (1991). As the court acknowledges, no case has ever put before us squarely the question whether a common law cause of action may be abolished retroactively without violating the Constitution. Ante at 630. I am somewhat troubled by the relative ease with which the court adopts and applies a “test” which has previously been used only in other contexts.1
Nonetheless, given the widespread use of the test in cases concerning retroactive legislation, I do not disagree that its application, with a certain amount of flexibility, is probably appropriate here. However, in its “balancing of interests,” ante at 631, the court leaves out of the mix some factors which I would include.
As to the court’s consideration of the three factors outlined in Leibovich, I accept the court’s analysis of the first consideration, i.e., the nature of the public interest motivating the retroactive legislation. I am less persuaded that the consider*637ation that the court gives the second, i.e. the nature of the plaintiffs’ interest, is adequate.
The court states that “[although the plaintiffs’ interests in the judgments on appeal are entitled to recognition as property rights, those interests are not as firmly established as rights of the kind that this court has protected against retroactive legislative abolition.” Ante at 632. Apparently, in the court’s view, the value of the plaintiffs’ right is impaired because their claims “rested on the uncharted and shifting pattern of the public duty rule and its exceptions.” Ante at 632. Although my views as to the problems inherent in the traditional public duty rule are a matter of record, see Jean W. v. Commonwealth, 414 Mass. 496, 497-514 (1993) (Liacos, C.J., concurring), I would attach more significance than does the court to the fact that the underlying claim in this case was “close” to an “exception that a majority of this court had adopted at the time of the accident.” Ante at 632. See Irwin v. Ware, supra. The Appeals Court felt that the plaintiffs’ claim fell comfortably within the special relationship exception created in Irwin. See Carleton v. Framingham, 34 Mass. App. Ct. 686, 690 (1993). So do I.
For this reason, I would give more weight to the value of the plaintiffs’ claim than the court appears to do. Likewise, I think the court fails to adequately address the “extent or scope of the statutory effect or impact.” Leibovich, supra at 577. Specifically, the court states that the “plaintiffs’ decedents did not act in reliance on the existence of a particular rule of law concerning governmental liability.” Ante at 634. This is undoubtedly true as far as it goes. However, in my view, the court should have considered also the reasonable reliance on the state of the law that the plaintiffs demonstrated by pursuing their case and expending considerable time, energy and money. See Keniston v. Assessors of Boston, 380 Mass. 888, 905 (1980) (reliance on cases in pursuing appeals relevant). This expenditure of time, energy and money is, after all, what appears to form the basis of the court’s recognition of a property interest, and it is what, in terms of fundamental fairness, weighs most heavily in favor *638of the plaintiffs. The Legislature has taken away from these plaintiffs something valuable. The court unintentionally trivializes this interest.
The reason that I concur with the court’s opinion, is that, even with the fuller consideration of the plaintiffs’ interest which I advocate, I would nonetheless have to conclude that they have not sustained their substantial burden in this case. The Legislature had before it the difficult task of fixing the boundaries of a “ ‘rule’ composed of inconsistent and irreconcilable parts, the sum of which [left] both the Justices and litigants quite incapable of predicting when and why liability [would] be imposed,” Jean W., supra at 504 (Liacos, C.J., concurring). Although I may not agree that the course chosen by the Legislature was the wisest one available, I understand the need for pending claims to be affected. At the same time, I cannot accept the court’s suggestion that a judgment already obtained may be taken away without raising a serious question of fairness.2
Neither American Mfrs. Mut. Ins. Co., nor any of the other cases to which the court refers in setting forth its test, concern the retroactive abolishment of a cause of action. See Leibovich v. Antonellis, 410 Mass. 568, 577 (1991) (concerning retroactive expansion of potential liability); St. Germaine v. Pendergast, 416 Mass. 698, 702-703 (1993) (retroactive expansion of obligation); Nantucket Conservation Found. v. Russell Management, Inc., 380 Mass. 212, 215-216 (1980) (retroactive effect on property right).
I also find curious the fact that the court does not discuss cases like Pinnick v. Cleary, 360 Mass. 1 (1971), where the court faced the question of the constitutionality of the abolishment of a common law right to recover in exchange for a substitute statutory right. Because the Pinnick court relied on the fact that the retroactive statute provided a substitute remedy, and no such substitute remedy is provided for here, I think that, at the very least, the court should explain why the lack of a substitute remedy is not a factor to be considered.
I agree with the court that the plaintiffs’ separation of powers arguments under art. 30 must fail because the judgment, subject to appeal, was not final. It should be noted also that St. 1993, c. 495, § 144, explicitly exempts final judgments from the amendments made by § 57 by providing that “[sjection 57 of this act shall apply to all claims upon which a final judgment has not entered . . . .”