Cary by and Through Cary v. Oneok, Inc. , 940 P.2d 201 ( 1997 )

SUMMERS, Vice Chief Justice.

¶ 1 The question is whether it was error to exclude a badly burned child from a portion of his damage suit trial because of his physical appearance. We hold that it was, and reverse.

¶ 2 Eric Cary is a boy who was severely burned when the water heater in the garage of his home exploded. He was trapped in the garage until rescued by his mother, and suffers from permanent disfigurement. At the time of the incident he was almost three years old. His mother brought this suit on his behalf¹ alleging negligence on the part of the defendant Oneok in inspecting and lighting the water heater.

¶ 3 Prior to trial Oneok presented a motion for bifurcation, asking that the liability phase and the damage phase each be tried separately. Oneok also asked that Eric, then six and one-half years old, be kept out of the court room for the liability phase, fearing that the jury would be sympathetic to plaintiff because of his disfigurement. The trial court granted the bifurcation and then ordered that Eric be excluded from the liability portion of his trial. After the trial court so ruled Oneok’s counsel suggested that he be allowed to inquire of the mother as to whether the child has no specific recollection of the incident, to be “of some benefit to the jury as to explain why the child is not here because of his tender years.” But the court settled that request with these words: “[Tjhat’s not the reason he’s not here. He’s not here because he’s scarred so badly I think it would be unfairly prejudicial.” Plaintiffs counsel objected to the ruling.

¶ 4 After a trial on the issue of liability the jury returned a verdict in favor of the defendant. Plaintiff appealed. The Court of Appeals affirmed. We have granted certio-rari and now reverse.²

¶ 5 Plaintiff asserts that the Oklahoma Constitution, Art. 2, § 6³, requires that a party be permitted to attend his own civil trial. He continues by pointing out that children younger than six have been permitted to testify in trials. In this case plaintiff was the only eye witness to the incident. Regardless of whether he was to testify, Eric’s counsel asserts that his presence would be of aid to his attorney by showing the jury the actual person whose life has been affected. He asserts that a jury may respond differently when faced with the person who suffered the harm.

¶ 6 Oneok asserts that Eric’s appearance would serve no legitimate purpose, and would inflame the passions of the jury. Oneok argues that the Oklahoma Constitution does not guarantee an individual’s right to be present during the trial of his or her case. It contends that Lorie Cary’s presence during the trial protected the injured child’s rights, as she was his mother and legal representative. Oneok also surmises that Eric would have been of no assistance at trial due to his young age at the time of the incident and his cloudy recollection of the events.

¶ 7 This Court has never been faced with this precise issue. We have said, however, that “a party to an action should have a reasonable opportunity to attend its trial.” Goff v. Goff 396 P.2d 513, 517 (Okla.1964); Jones v. Nicoma Park Radio & Television Sen., 408 P.2d 770, 774 (Okla.1965). Both Goff and Jones involved parties who voluntarily absented themselves from the proceedings, and we held that it was not error for the trial to be held in their absence.⁴ That is not the case here. Furthermore, we have never been asked to interpret Art. 2, § 6 to require a party’s presence at his or her trial.

Rather, we have recognized Section 6’s protection as respecting an individual’s right to have access to the judicial process- for all wrongs recognized by law. St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 782 P.2d 915, 919 (Okla.1989).

¶ 8 Courts differ in their approach to this question. Some courts hold that the right to attend trial is an absolute right, arising out of state or federal constitutional provisions. Rozbicki v. Huybrechts, 218 Conn. 386, 589 A.2d 363 (1991) (state constitutional right to jury trial mandated that party be allowed to be present during trial); Carlisle v. County of Nassau, 64 A.D.2d 15, 408 N.Y.S.2d 114 (N.Y.S.Ct.1978) (the constitutional right to jury trial carries with it the right to be physically present during the trial regardless of whether you are adequately represented by counsel); In re Rosemary Watson, 91 Cal.App.3d 455,154 Cal. Rpt. 151 (1979) (fundamental due process right to be present during a commitment proceeding which could result in the loss of substantial personal liberty). .

¶ 9 In Helminski v. Ayerst Laboratories, 766 F.2d 208 (6th Cir.1985), the Circuit Court observed that although the Due Process clause does not give a civil litigant the absolute right to be present personally during his trial, due process is offended if he is excluded arbitrarily or in the absence of extreme circumstances. It went on to conclude that a plaintiffs physical appearance alone does not warrant his expulsion. Id. At 215.

¶ 10 Others, without relying on constitutional provisions, hold that absent an overwhelming reason to the contrary, a party has a right to attend the trial of his lawsuit. Mason v. Moore, 226 A.D.2d 993, 641 N.Y.S.2d 195 (N.Y.S.Ct.1996) (injured infant was entitled to be present during trial absent aft express waiver or unusual circumstances, and reliance on stereotypical assumption that jury will be prejudiced is insufficient); Marks v. Mobil Oil Corp., 562 F.Supp. 759 (E.D.Pa.1983) aff'd 727 F.2d 1100 (1983) (severely injured passenger was entitled to be present at the liability phase of his trial); Florida Greyhound Lines v. Jones, 60 So.2d 396 (Fla.1952) (woman on a stretcher had a right to be present at her trial).

¶ 11 It appears to be universally settled that a party’s disruptive behavior is a legitimate basis for excluding the litigant. Illinois v. Allen, 398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970) (Criminal defendant may be excluded because of disruptive behavior); Kimithi v. State, 546 S.W.2d 323 (Tex.Cr.App.1977); Morley v. Superior Court of Arizona, 131 Ariz. 85, 638 P.2d 1331, 1334 (1981). Closer to our case here, many jurisdictions have agreed that exclusion of a party is permissible if prejudice will occur by the party’s physical appearance and the party’s condition is such that he or she cannot comprehend the proceedings and aid counsel in the representation. Helminski v. Ayerst Laboratories, supra (due process would be otherwise offended); Morley v. Superior Court of Arizona, 131 Ariz. 85, 638 P.2d 1331 (1981); Dickson v. Bober, 269 Minn. 334, 130 N.W.2d 526 (1964) (party who was incapable of understanding proceedings due to his injury was properly excluded); Reems v. St. Joseph’s Hosp. & Health Center, 536 N.W.2d 666 (N.D.1995) (child injured at birth was properly excluded because child could not assist in or understand proceedings); Caputo v. Joseph J. Sarcona Trucking Co., 204 A.D.2d 507,, 611 N.Y.S.2d 655 (N.Y.S.Ct.1994) (trial court properly excluded a party that was mentally disabled and could not assist counsel).

¶ 12 Regardless of their approach, courts agree on two points: (1) The ideals behind due process and a fair trial permit a party to be present in the courtroom absent extreme conditions and (2) the possibility of juror sympathy alone is not juror prejudice, and is insufficient to exclude a party from the courtroom. Helminski, 766 F.2d at 216; Morley, 638 P.2d at 1334; Reems, 536 N.W.2d at 669. It also appears that a party’s physical condition alone does not warrant exclusion. Helminski, 766 F.2d at 214.

¶ 13 Oklahoma has never held, nor do we so hold here, that a party’s right to be present in the courtroom is absolute. We can contemplate situations in which the disruptive behavior of a party would necessitate the party’s exclusion from the courtroom, and a trial may proceed after a party has voluntarily waived the right to be present. Goff 396 P.2d at 517. However, we find no authority for the proposition that a party may be excluded solely by reason of his disfigurement. Absent a voluntary waiver we hold that only in the case of extreme circumstances may a party be excluded from the proceedings. See Mason v. Moore, 641 N.Y.S.2d at 196; Marks, 562 F.Supp. at 768. Exclusion of a party is disfavored. The party seeking exclusion must bear the burden of showing that only through exclusion can a fair trial be obtained. Helminski. supra at 216.

¶ 14 A party’s physical appearance cannot be the sole basis for exclusion from the courtroom, and does not amount to an “extreme circumstance” permitting exclusion. We agree with the Florida Supreme Court which stated:

One who institutes an action is entitled to be present when it is tried. That, we think, is a right that should not be tempered by the physical condition of the litigant. It would be strange, indeed, to promulgate a rule that a plaintiffs right to appear at his own trial would depend on his personal attractiveness, or that he could be excluded from the court room if he happened to be unsightly from injuries which he was trying to prove the defendant negligently caused.

Florida Greyhound Lines v. Jones, 60 So.2d at 396 (Fla.1952). In the present case the plaintiff was excluded because he was a party to the lawsuit, and due to his appearance the judge feared that the jury would be overly sympathetic. If Eric had been merely an observer and not a party, he would have been permitted in the courtroom. It is impermissible that he is kept from observing and participating in the proceedings solely because of his status as a party who was burned and is thus physically scarred.

¶ 15 Rather than assuming the jury will be prejudiced by a physically scarred plaintiff, this holding aligns us with those courts which repose trust in the jury. A jury will generally follow the court’s instructions and decide a case based on the law presented. Helminski 766 F.2d at 216. “In our view where, as here, the movant relies solely on a stereotypical assumption that a party’s disability will prejudice the jury, there are insufficient grounds for excluding that party from the trial.” Mason, 641 N.Y.S.2d at 196.

¶ 16 We agree that a fundamental cornerstone of due process is an impartial jury. Agee v. Gant, 412 P.2d 155, 162 (Okla. 1966). We do not agree with Oneok’s assumption that the likelihood of jury sympathy is the equivalent of prejudice, and amounts to a denial of due process. A juror’s sympathetic feeling toward a party does not necessarily lead to the conclusion that the jury will disregard the law to reach a verdict based on sympathy alone.

¶ 17 Helminski posits that if a plaintiff’s physical condition is such that prejudice is a real concern, the trial judge makes two further inquiries. Then, only if the court has found that in addition to the physical condition the party’s mental state is such that he or she can neither comprehend the proceedings nor aid counsel in presenting the case, does the court have discretion to exclude him or her from the liability phase of the trial. Id. at 16.

¶ 18 There may need to be a re-examination of those eases, including Helminski, which hold that a disfigured plaintiff may be excluded if he or she cannot aid the attorney or comprehend the proceedings. These cases were decided before the enactment of the Americans with Disabilities Act, a law that specifically prohibits discrimination on the basis of a physical or mental handicap. Title 42 U.S.C. § 12132 (1990).⁵ Those cases which followed this reasoning and were decided after the ADA’s enactment did not address the issue.⁶

¶ 19 Even were we to conclude that the Helminski standard survived the ADA, and was the preferable approach, we find that it has not been satisfied in this case. The record is far from clear that Eric could not meaningfully comprehend what was going on. He was six and one-half years old at the time of trial, and there is no allegation of a mental handicap which would have precluded him from comprehending the basic events of the trial as they occurred. The defendant has the burden of showing grounds for exclusion.

¶20 Other courts have permitted young injured children who were parties to be present in the courtroom despite that fact that they could not fully comprehend the proceedings. Chicago Great Western Ry. Co. v. Beecher, 150 F.2d 394 (8th C&.1945) (three-year-old child permitted in courtroom); Anderson v. Sears, Roebuck & Co., 377 F.Supp. 136 (E.D.La.1974) (disfigured child injured by heater burns permitted to remain in courtroom). While the comprehension of a child might be less than that of an adult, a child Eric’s age likely has some understanding of the basic events of a trial as they occur, and there is nothing in the record to the contrary.

¶21 Oneok also failed to show that Eric Cary would have been of no assistance to his attorney. Oneok admits that the child has a recollection of the incident, even though his mother says that recollection has changed as time passed. Assistance to an attorney does not necessitate that the party be there to testify. The importance of the physical presence of a party cannot be anticipated, as developments may occur at trial that were unplanned by the attorney. The attorney “cannot know all that his client knows. Oftentimes it is essential for the proper presentation of the case to have the client at hand ready to prompt the cross-examiner and to respond to his inquiries.” Rozbicki v. Huybrechts, 218 Conn. 386, 589 A.2d 363 (1991). Again, the defendant who would exclude a party bears the burden of persuasion.

¶22 The Helminski court spelled out under what circumstances a court could, in its discretion, exclude a disabled plaintiff, and concluded that the lower court committed error in excluding him for reasons of physical appearance alone. It went on to hold the error harmless, and affirmed the judgment for the defendant. In that case, however, the disabled child was developmentally retarded from birth, was autistic, was not toilet trained, could not speak, and required 24-hour a day care. Erie, as far as we can tell from the record, was a normal six and one-half year old boy but for his burns and scars. To extend the harmless error doctrine to his case would trivialize his right to observe and be a part of the proceedings which likely will profoundly influence much of the rest of his life.

¶ 23 Based on the record before the trial court and before us on review, we conclude that Eric was entitled to attend the liability phase of his own trial, and his exclusion requires reversal. The opinion of the Court of Appeals is vacated, the judgment for the Defendant is reversed, and the cause is remanded to the trial court for further proceedings.

¶ 24 KAUGER, C.J., and HODGES, ALMA WILSON and WATT, JJ., concur. ¶ 25 LAVENDER, SIMMS, HARGRAVE and OPAL A, JJ., dissent.

1 . An action must be prosecuted in the name of the real party in interest. 12 O.S.1991 § 2017(A). Title 10 O.S.1991 § 17.1 requires that an action by a minor child be prosecuted by the next friend or representative of the child.

2 . We do not address the issue of bifurcation because it was not raised by Plaintiff in his petition for certiorari. Issues resolved by the Court of Civil Appeals adverse to the certiorari petitioner but not raised on certiorari are beyond this Courts’ cognizance. Jackson v. Jones, 907 P.2d 1067, 1074 (Okla.1995).

3 . Article 2, Section 6 states:

The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.

4 .The Court of Criminal Appeals has held likewise. Sonnier v. State, 597 P.2d 771 (Okla.Cr.1979).

5 . On appeal Cary claims that his exclusion from the courtroom during his trial was a violation of the Americans with Disabilities Act. He did not raise this issue at trial. We therefore do not address the merits of this claim. Bane v. Anderson, Bryant, & Company, 786 P.2d 1230, 1237 (Okla.1989). We mention the Americans with Disabilities Act only to observe that there may be some case law that will need rc-evaluation in light of the Act.

Section 12132 reads:

Subject to the provisions of this subchapter, no qualified individual which a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

6 . So far, no court has resolved the issue of a party's exclusion from trial in light of the ADA. However, the ADA has been held to apply to the physical surroundings of a federal courthouse. Kroll v. St. Charles County, 766 F.Supp. 744 (E.D.Mo.1991). A judge who violated the ADA by not accommodating a handicapped person who needed special access to a restroom during trial was not immune from liability for this violation. Livingston v. Guice, 68 F.3d 460 (4th Cir.1995).