dissenting.
The principal opinion recognizes that the state constitutional right to a trial by jury applies to Sanders’ claim for wrongful death. The principal opinion then holds that the statutory cap on non-economic damages does not violate Sanders’ right to a jury trial because the legislature could have precluded recovery of non-economic damages completely. When the constitutional right to a jury trial attaches, it is beyond the reach of hostile litigation. Therefore, I respectfully dissent from the principal opinion’s holding that the statutory cap on non-economic damages does not violate the “inviolate” constitutional right to a trial by jury.
The Missouri Constitution plainly states, “That the right of trial by jury as heretofore enjoyed shall remain inviolate....” Mo. Const, art. I, sec. 22(a). “Inviolate” is defined as “free from change or blemish, pure or unbroken.” Webster’s Third New International Dictionary 1190 (1993). The definition of “inviolate” frames the issue. “Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.” Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 79 L.Ed. 603 (1935). It is impossible for the right to a trial by jury to “remain inviolate” when a statutory limit requires the reduction of the jury’s verdict regardless of the particularized facts of each case.
The special constitutional significance of the jury’s role in determining damages is reflected in the analytical basis for determining whether the right to trial by jury attaches. The principal opinion finds that the constitutional right to a trial by jury only attaches to common law actions that existed before the constitution’s adoption in 1820, citing Adams v. Children’s Mercy Hosp., 832 S.W.2d 898, 907 (Mo. banc 1992). However, the reasoning set forth in Adams and followed by the principal opinion is flawed. Adams allows the legislature to modify or abolish causes of action by statute. See Klotz v. St. Anthony’s Med. Ctr., 311 S.W.3d 752, 773 (Mo. banc 2010) (J. Wolff, concurring). If this maxim is absolute, then the legislature could abolish common law actions and then reenact them as statutory actions with dramatic limitations on damages.
Obviously, this is not the law. If the action is a civil action for damages, then *215the right to a jury trial attaches and must “remain inviolate.” State ex rel. Diehl v. O’Malley, 95 S.W.3d 82, 84 (Mo. banc 2003). The principal opinion recognizes that Sanders’ wrongful death claims were heard properly by a jury. “The right to trial by jury ... is a constitutional right, [and it] applies ‘regardless of any statutory provision,’ and is ‘beyond the reach of hostile legislation.’ ” Id. at 92 (quoting Lee v. Conran, 213 Mo. 404, 111 S.W. 1151, 1153 (Mo.1908)).
Because the constitutional right to a civil jury trial attaches in this case, statutory limits imposed on the jury’s determination of damages directly curtails one of the most significant constitutional roles performed by the jury. Section 538.210 nullifies the jury’s finding of fact regarding the amount of damage actually suffered by the plaintiff by requiring the court to reduce a non-economic damages award determined by a jury that exceeds the statutorily imposed limit. This undermines one of the jury’s most basic functions and the plaintiffs right to a trial by jury. See Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 691 S.E.2d 218, 223 (2010); Moore v. Mobile Infirmary Ass’n, 592 So.2d 156, 164 (Ala.1991). If the jury’s particularized damage determination is disregarded, this Court merely pays “lip service to the form of the jury by rob[bing] the institution of its function.” Sofie v. Fibreboard Corp., 112 Wash.2d 636, 771 P.2d 711, 721 (1989).
Further, the cap on non-economic damages also violates the separation of powers. The statutory cap on non-economic damages encroaches on the judicial prerogative of remittitur in determining whether the jury’s assessment of damages is appropriate on a case-by-case basis.1 As an institutional body, the legislature is not in a position of being able to make this particularized determination, and this violates the separation of powers. See Sofie, 771 P.2d at 721, Best v. Taylor Mach. Works, 179 Ill.2d 367, 228 Ill.Dec. 636, 689 N.E.2d 1057, 1081 (1997), Lebron v. Gottlieb Mem’l Hosp., 237 Ill.2d 217, 341 Ill.Dec. 381, 930 N.E.2d 895, 914 (2010).
Our constitution “deals with substance, not shadows.... If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.” Cummings v. Missouri, 71 U.S. 277, 325, 4 Wall. 277, 18 L.Ed. 356 (1866). Therefore, I would hold that the cap on non-economic damages as enunciated in section 538.210 represents an impermissible burden on the inviolate right to a trial by jury as guaranteed by article I, section 22(a) of the Missouri Constitution and the separation of powers as guaranteed by article II, section 1 of the Missouri Constitution.
. The common law right of remittitur has been established since Justice Story’s opinion in 1822. Blunt v. Little, 3 F.Cas. 760, 761 (C.C.D.Mass.1822). The United States Supreme Court accepted Justice Story’s vision uncritically. See N. Pac. R. Co. v. Herbert, 116 U.S. 642, 643, 6 S.Ct. 590, 29 L.Ed. 755 (1886) and Linn v. United Plant Guard Workers of Am., Local 114, 383 U.S. 53, 64, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). This Court relinquished the common law right to remitti-tur in Firestone v. Crown Ctr. Redevelopment Corp., 693 S.W.2d 99 (Mo. banc 1985). Acting in the void of Firestone, the legislature statutorily enacted section 537.068, reinstating remittitur and granting authority for the additur.