Gage v. Bozarth, 92A03-8607--CV--178

CourtCourt of Appeals of Indiana
Citation505 N.E.2d 64
Docket NumberNo. 92A03-8607--CV--178,92A03-8607--CV--178
PartiesDwight GAGE, Appellant (Plaintiff Below), v. Clarence G. BOZARTH and Kevin W. Bozarth, Appellees (Defendants Below).
Decision Date17 March 1987

Robert Owen Vegeler, Beers, Mallers, Backs, Salin & Larmore, Fort Wayne, for appellant.

William E. Borror, Thomas L. Wooding, Hunt, Suedhoff, Borror & Eilbacher, Fort Wayne, for appellees.


Plaintiff Dwight Gage brings this interlocutory appeal from the Whitley Circuit Court's granting of defendants Clarence and Kevin Bozarths' motion to exclude Gage from the courtroom during the liability phase of their trial.

The relevant facts of this case are as follows: On March 5, 1983, three-year-old Dwight Gage was struck by an automobile driven by Kevin Bozarth and owned by Clarence Bozarth. The accident, for which Gage seeks damages, rendered the now seven-year-old Gage a quadriplegic and dependent upon a ventilator to breathe. The Bozarths successfully moved to have the trial bifuricated into liability and damages portions and requested that Gage be excluded from the courtroom during the liability phase of the trial. After a hearing where the Bozarths presented evidence that Gage's presence in the courtroom during the liability phase of the trial would be prejudicial to them and that Gage's presence in the courtroom was not needed to aid in the presentation of his case, the trial court granted the Bozarths' motion to exclude Gage from the courtroom during the liability phase of the trial. The order of the trial court was certified and this interlocutory appeal ensued.

This Court must first determine if it is ever proper to exclude a plaintiff from a courtroom because of potential prejudice resulting from the plaintiff's appearance or behavior. Both parties here agree that this question is one of first impression in Indiana. In the case of Ziegler v. Funkhouser (1908), 42 Ind.App. 428, 432, 85 N.E. 984, 986, this Court stated that "[i]t is the right of every party litigant to be present in person in court upon the trial of his own case ...," but this statement was made in a context that makes it inapplicable to the case at bar. The court in Ziegler set aside a default verdict against a defendant who was sick and unable to come to court, finding both excusable negligence and that she had the right to come to court and defend against claims filed against her. 42 Ind.App. at 432, 85 N.E. at 984. There being no Indiana case law on the issue presented by Gage, decisions of the states whose courts have dealt with the exclusion of a plaintiff from the courtroom may be of assistance.

The Supreme Court of Florida found no error in a trial court's allowing a plaintiff confined to a stretcher to appear at trial:

"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 (1952) Fla., 60 So.2d 396, 397.

The District Court of Appeals of Florida followed the Florida Greyhound decision in the cases of Purvis v. Inter-County Telephone & Telegraph Co. (1967) Fla., 203 So.2d 508 (reversal of the trial court because plaintiff improperly barred from the courtroom) and Talcott v. Holl (1969) Fla., 224 So.2d 420 (no error found in allowing incapacitated plaintiff into the courtroom to be used as demonstrative evidence of brain damage). The Supreme Courts of Missouri and South Dakota have also held that injured plaintiffs should not be excluded from their trials. The courts in Bryant v. Kansas City R. Co. (1921) 286 Mo. 342, 228 S.W. 472 (nine-year-old plaintiff with amputated leg due to accident involving a street car) and Sherwood v. City of Sioux Falls (1898) 10 S.D. 405, 73 N.W. 913 (plaintiff brought into courtroom on a cot) found that the plaintiffs in those cases had a right to be present in the courtroom during their trials.

The New York Supreme Court, Appellate Division, found a constitutional right, unaffected by plaintiff's representation by counsel, for a plaintiff to be present at all times in the courtroom:

"In my opinion, therefore, the fundamental constitutional right of a person to have a jury trial in certain civil cases includes therein the ancillary right to be present at all stages of such a trial, except deliberations of a jury."

Carlisle v. County of Nassau (1978) 64 A.D.2d 15, 408 N.Y.S.2d 114, 116.

The Carlisle court appears to find a right for a plaintiff to be present in the courtroom at all times regardless of any possible bifurication of the proceedings into a liability portion and a damages portion. However, it is important to note that there was no evidence from the opinions in Florida Greyhound, supra; Talcott, supra; Bryant, supra or Sherwood, supra that the trial proceedings they reviewed were bifuricated into separate liability and damages proceedings.

State courts in Minnesota and Arizona have held that it is permissible, under certain guidelines, for a trial court to exclude an injured plaintiff from the courtroom during trial. In Dickson v. Bober (1964) 269 Minn. 334, 130 N.W.2d 526, the Supreme Court of Minnesota found no error in the trial court's order barring a plaintiff, who had been so injured in a motorcycle accident as to be unable to testify or understand proceedings, from appearing at trial. The Dickson court found that the rights of the plaintiff were adequately protected by his guardian and by the attorney selected to represent his interests during the trial. 130 N.W.2d at 530. The Supreme Court of Arizona, in Morley v. Superior Court of Arizona, etc. (1981) 131 Ariz. 85, 638 P.2d 1331, followed Dickson in upholding the exclusion of a comatose plaintiff from the courtroom during the liability phase of the trial. The Morley court in so holding discussed the competing interests of the right of the plaintiff to be present and the defendant's right to an impartial jury:

"A plaintiff unable to at least communicate with counsel will have no right denied by exclusion from the courtroom during the liability phase of the trial. If in addition the plaintiff's physical condition, allegedly caused by the defendant, is so pitiable that the trial court determines the plaintiff's mere presence would prejudice the jury, then failure to exclude the plaintiff during the liability phase would deny the defendant's right to an unbiased jury when the source of the bias is totally irrelevant to the liability issue."

638 P.2d at 1334.

The Morley court also pointed out that the plaintiff's presence, and any other evidence of his injuries, was allowable and relevant during the damages portion of the bifuricated trial. 638 P.2d at 1334.

The Southern District of Ohio concluded that minor plaintiffs, who were claiming that their birth defects were caused by the drug Bendectin, were not able to testify or meaningfully consult with counsel and that "the unfair prejudicial effect of [the children] is beyond calculation" and thus it was not error for the trial court to exclude those chidren from the courtroom. In re Richardson-Merrill, Inc. Bendectin Products (S.D.Ohio 1985) 624 F.Supp. 1212, 1224. The In re Richardson-Merrill court stated that the potential of a biased jury caused by the presence of the plaintiffs was a valid concern for the trial court:

"If the battle is emotional alone, between newborn infants and big business, there can be but one winner. Emotional battles, however, should not be staged in the federal courtroom. We deal in liability imposed not by emotion but by the law."

624 F.Supp. at 1224.

The United States Court of Appeals, Sixth Circuit, found in the case of Helminski v. Ayerst Lab., a Div. of A.H.P.C. (6th Cir.1985) 766 F.2d 208 that a plaintiff may be excluded from the courtroom by the trial court:

"Neither the Fifth Amendment's due process clause nor the Seventh Amendment's guarantee of a jury trial grants to a civil litigant the absolute right to be present personally during the trial of his case."

766 F.2d at 213.

The Helminski opinion, which was relied upon by the Southern District of Ohio in In re Richardson-Merrill, held that the exclusion of the plaintiff from the liability phase of the trial comports with due process if the defendant can show that prejudice will result from the plaintiff's presence and that the plaintiff is unable to assist his counsel. 766 F.2d at 218.

Though the question of whether or not a trial court is ever allowed to exclude a plaintiff from a courtroom is one of first impression in Indiana, this Court's decision is ultimately guided by well-settled principles regarding the administration of trial proceedings in this state. It is in the trial court's discretion to control the trial proceedings so as to keep the jury from being misled into an improper verdict. Huntington v. Hamilton; v. Hanna Judge (1947), 118 Ind.App. 88, 97, 73 N.E.2d 352, 355, trans. denied. It is the duty of the trial court to see that the fundamental right of due process for both parties is not improperly denied. Kaiser Alum. & Chem. Sales v. Dickerhoff (1964), 136 Ind.App. 258, 261, 199 N.E.2d 719, 721. The constitutional right to a trial by jury in civil cases, as granted by Art. 1, Sec. 20 of the Indiana Constitution, is to be scrupulously guarded by our courts. Kettner v. Jay (1940), 107 Ind.App. 643, 645, 26 N.E.2d 546, 547. In light of this state's policy that the trial court has the power to protect the constitutional guarantees of due process and an impartial jury, the trial courts do have discretion to exclude plaintiffs from the courtroom during the...

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    ...508, 611 N.Y.S.2d 655, 656 (1994); Bremner By and Through Bremner v. Charles, 312 Or. 274, 821 P.2d 1080, 1086 (1991); Gage v. Bozarth, 505 N.E.2d 64, 69 (Ind.App.1987); Morley v. Superior Court of Arizona, Etc., 131 Ariz. 85, 638 P.2d 1331, 1334 (1982); Dickson v. Bober, 269 Minn. 334, 130......
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    ...child is beyond calculation." Id. at 1224. We need not prolong this opinion with like quotations from other cases. See Gage v. Bozarth, 505 N.E.2d 64 (Ind.App. 1987); Bremner v. Charles, 312 Or. 274, 821 P.2d 1080 (1991); Burks v. Harris, 1992 WL 322375, 1992 Tenn.App. LEXIS 913 (Tenn.Ct.Ap......
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    ...consult with counsel, and her presence would prejudice the jury.3 In support of their motion, Healthcare Providers cited Gage v. Bozarth, 505 N.E.2d 64 (Ind.Ct.App.1987), trans. denied. In that case the trial court excluded the seven-year-old plaintiff from the courtroom during the liabilit......
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