Cary by and through Cary v. Oneok, Inc.

• Decision Date: 06 May 1997
• Docket Number: Nos. 81356,81655,s. 81356
• Citation: 940 P.2d 201,1997 OK 60
• Parties: , 1997 OK 60 Eric CARY, a minor, By and Through his mother and next friend Lorie S. CARY, Plaintiff-Appellant, v. ONEOK, INC., Defendant-Appellee.
• Court: Oklahoma Supreme Court

Page 201

940 P.2d 201

65 USLW 2763, 1997 OK 60

Eric CARY, a minor, By and Through his mother and next friend Lorie S. CARY, Plaintiff-Appellant, v. ONEOK, INC., Defendant-Appellee.

Nos. 81356, 81655.

Supreme Court of Oklahoma.

May 6, 1997.

As Corrected on Denial of Rehearing

July 1, 1997.

Tom King, King, Roberts & Beeler, Michael D. Lewis, Gary Peterson, Oklahoma City, for Plaintiff-Appellant Eric Cary.

D. Lynn Babb, G. Calvin Sharpe, Pierce, Couch, Hendrickson, Baysinger & Green, Oklahoma City, for Defendant-Appellee Oneok, Inc.

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 behalf ¹ 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: "[T]hat'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 certiorari ¶5 Plaintiff asserts that the Oklahoma Constitution, Art. 2, § 6 ³, 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.

and now reverse. ²

¶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 Serv., 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 ¶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).

an 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).

¶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 plaintiff's 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...