RODOWSKY, J., concurring in part and dissenting in part.

I join the opinion of the Court on the venue issue, and I join in Part III of the dissenting opinion by Chief Judge Bell on the issue of the plaintiff's exclusion from the courtroom.

Dissenting Opinion by BELL, C.J., Part III of which is joined by RODOWSKY, J.

Today, the majority holds that a plaintiff, who is disabled and has not waived the right to be present in court, may be excluded from the liability phase of his civil action even though his presence would not be disruptive. In addition, it concludes that, in this case, venue lay in Anne Arundel County, the plaintiff having first experienced injury in the form of "neurological deterioration" and pain and suffering in that County. The majority reasons that this conclusion is inescapable because of the plaintiff's own admission, in answering an interrogatory:

"After being released from [NAHA] at 3:05 p.m. on August 18, 1988 Darwin continued to complain of headache and that evening his father gave him another Viacodin as prescribed

by Dr. Fields. . . . The next morning, August 19, 1988 Darwin still complained of a headache and his parents took him to his pediatrician, Dr. Lee . . . . Dr. Lee noted that Darwin had a headache, drowsiness and was now staggering, and he immediately arranged for Darwin's parents to take him to University of Maryland Hospital."

In so ruling, the majority affirms the judgment of the Court of Special Appeals, which, in turn, affirmed the judgment of the Circuit Court for Anne Arundel County. Green v. North Arundel Hospital Ass'n, Inc., 126 Md. App. 394, 730 A.2d 221 (1999). In my opinion, the majority is wrong on both accounts.

I.

Darwin Green was born with a medical condition called hydrocephalus, in which excessive accumulation of fluid causes increased pressure on the brain. Shortly after he was born, a shunt was placed in the right ventricle of his brain to release the pressure caused by the build up of intracranial fluid by draining the extra fluid to another part of his body. Darwin responded well to the placement of the shunt and, although he had previously experienced a problem with the shunt and his intellectual capability was somewhat limited, he was able to attend special education classes and function reasonably well.

The events giving rise to this action occurred when Darwin was eleven years old. He complained of a headache and began vomiting and feeling nauseous. Concerned, his father took him to the emergency room of North Arundel Hospital Association, Inc. ("NAHA"), where Dr. Richard T. Fields was the emergency room physician on duty. Dr. Fields ordered an emergency CT scan, which was interpreted by Dr. Stewart P. Axelbaum, a radiologist. Although Dr. Axelbaum observed, and noted the presence of, shunts in Darwin's brain as well as a number of other abnormalities, including an old hygroma and a porencephalic cyst, he interpreted those abnormalities as old changes, consistent with pathology related to congenital malfunctions. Dr. Fields also consulted, by telephone, Dr. Harshad R. Mody, the neurologist on call for the hospital. Dr. Mody opined that Darwin could be discharged when his headache subsided. Darwin was discharged without a shunt malfunction having been diagnosed when, after taking a pain medicine prescribed by Dr. Fields, he reported that his headache was gone.

After his release from NAHA, Darwin again complained of a headache and he continued to do so. Therefore, at the direction of his pediatrician, whom he consulted the next day at the suggestion of Dr. Fields, he was taken to the University of Maryland Hospital ("UMA"), where his condition was correctly diagnosed. Before the doctors at UMA operated to correct the condition, however, Darwin went into cardiac arrest, which left him in a chronic vegetative state.

Darwin, by his parents, and his parents filed in the Circuit Court for Baltimore City a medical malpractice action naming Dr. Fields and NAHA, two of the respondents, as defendants. In the suit, they alleged that the respondents' negligence caused Darwin's injuries, that the respondents breached the applicable standard of care by failing to diagnose the alleged malfunction of the shunt in Darwin's brain, and that a proper diagnosis would have prevented his subsequent cardiac arrest. After a hearing, the Baltimore City court determined that Anne Arundel County, not Baltimore City, was the proper venue, noting that the cause of action arose, and both NAHA and Dr. Fields conducted business solely, in Anne Arundel County and also that Dr. Fields resided there. The case was subsequently transferred to Anne Arundel County.

While pending in the Circuit Court for Anne Arundel County, two additional defendants, Drs. Axelbaum and Mody, the latter of whom regularly conducted business and maintained an office in the City of Baltimore, were joined in the proceedings. This did not occur until after the petitioners' second medical malpractice action filed in the Circuit Court for Baltimore City, this one naming Drs. Mody and Axelbaum, in addition to Dr. Fields and NAHA, as defendants, and also setting forth the same claims against NAHA and Dr. Fields as already were pending in the Circuit Court for Anne Arundel County, had been dismissed and their motion to transfer the case back to Baltimore City had been heard and denied. Thereafter, the trial court bifurcated the liability and damages issues and set a trial date as to the former.

The respondents moved in limine to exclude the plaintiff from the courtroom during the liability phase of the trial. The respondents relied on the plaintiff's physical disability and the medical evidence concerning the nature and extent of his physical condition. The respondents described Darwin as being, or likely to be, wheelchair bound, with a tracheotomy that allowed him to breathe through a hole in his neck, a feeding tube, and an ambubag to provide supplemental oxygen, and requiring assistance by periodic suctioning. They argued, and they reiterated on appeal, that because Darwin's mere appearance before the jury at trial would prejudice them, his exclusion was permissible within the trial court's discretion and did not contravene the ADA or the federal and state constitutions. In further support of their argument, the respondents emphasize that Darwin is in a chronic vegetative state and, therefore, "will not be able to understand the proceedings. He will not be able to communicate with his counsel. He will not have any meaningful participation in that form."

The Circuit Court granted the respondents' motion. After considering the arguments and viewing a videotape of a day in the life of Darwin, it found that Darwin was virtually motionless and had to be fed by a feeding tube and suctioned from the neck every two hours. Moreover, the court determined that Darwin did not have the ability to communicate with his attorneys, nurses, or parents; that he would be unable to provide any assistance to his attorneys in preparing his case; and that he would not understand or comprehend any portion of either the trial proceedings or the pleadings. It therefore concluded that Darwin's presence in court would serve no other purpose than to be highly prejudicial, to prejudice the jurors against the respondents.

The case was tried on the merits and ultimately presented to the jury for a decision on liability. The court having granted NAHA's and Dr. Mody's motions for judgment, made at the conclusion of the plaintiff's case, the jury returned a verdict in favor of the respondents, Drs. Fields and Axelbaum, concluding that neither "departed from accepted standards of care in the treatment of Darwin Green."

The Court of Special Appeals affirmed. It applied the analysis employed by the United States Court of Appeals for the Sixth Circuit in Helminski v. Ayerst Lab., 766 F.2d 208 (6th Cir. 1985), in resolving the propriety of the exclusion of a civil plaintiff from trial. In addition, the intermediate appellate court noted that, "[e]ven if we were to have decided that [the petitioner] should not have been excluded from the courtroom, appellants have failed to show that the error was prejudicial," because "[i]f present during every minute of the trial, his presence could not have affected the answer to [the] standard of care question." Id. at 423, 730 A.2d at 237.

The majority agrees that the appropriate analysis is that of the Helminski court. Op. at 655. Characterizing it's holding as "a narrow one," the majority announces:

"In the liability phase of a bifurcated trial, the court has discretion to exclude a plaintiff where, after a hearing and an opportunity to observe the plaintiff, either in person or by other reliable means, the court determines, on the record, that: (1) the plaintiff is severely injured; (2) the plaintiff attributes those injuries to the conduct of the defendant(s); (3) there is a substantial prospect that the plaintiff's presence in the courtroom may cause the jury to side with the plaintiff out of emotional sympathy rather than on the evidence; (4) the plaintiff is unable to communicate or participate in the trial in any meaningful way; and (5) the plaintiff would be unable even to comprehend the proceeding. When all of those circumstances exist, as they did here, the plaintiff's presence is not truly an exercise of his/her right of presence, for the plaintiff is incapable of making a conscious decision in that regard. His presence is rather as an exhibit — a piece of evidence — that is both irrelevant and prejudicial, and thus invokes the balancing process enunciated in Maryland Rule 5-403."

Id. at 626-27.

II.

Venue describes the proper court in which to bring an action. Under Maryland Code (1973, 1998 Repl. Vol.), §§ 6-201 and 6-202 of the Courts and Judicial Proceedings Article, venue is proper in the county where the defendant resides, carries on a regular business, is employed, habitually engages in a vocation, or where the cause of action arose. Thus, a plaintiff may bring his or her action in any county where any one of the prerequisites apply. The petitioners initiated their action in the Circuit Court for Baltimore City. That court determined that Anne Arundel County, and not Baltimore City, was the proper venue, ruling:

"[I]t is clear to me that the cause of action arose in Anne Arundel County. The defendants are all residents of Anne Arundel County.

The fact that the result of their negligence became apparent in some other jurisdiction doesn't transfer the jurisdiction to that county or subdivision as the case may be."

When pressed as to whether the ruling was that Darwin could have sued NAHA for damages, noting that such a determination was "an issue of fact based on the allegations," the court clarified that it "found that the negligence occurred in Anne Arundel County." It transferred the case to Anne Arundel County and the petitioners challenged that ruling on appeal arguing, in particular, that the cause of action arose in Baltimore City.

In addressing that issue, the Court of Special Appeals perceived the critical issue to be the meaning of the phrase, "where the cause of action arose," as used in §§ 6-201(b) and 6-202(8). On that point, the respondents successfully argued to the Baltimore City Circuit Court that venue in a tort action or a contract action arises where the alleged breach occurs. The intermediate appellate court rejected that argument, after applying the same analysis to the determination of where the cause of action arose as applies to the determination of when it arose. The court thus reversed the judgment of the Baltimore City court on that point. Nevertheless, it proceeded to address the merits of the petitioners' argument with respect to where the cause of action arose.

Critical to that determination was the meaning of "injury" as used in the statutes. In search of a viable definition, the Court of Special Appeals adopted the definition enunciated in Edmonds v. Cytology Services, 111 Md. App. 233, 681 A.2d 546 (1996) aff'd sub nom., Rivera v. Edmonds, 347 Md. 208, 699 A.2d 1194 (1997):

"`A patient sustains an `injury' . . . when, as a result of the tort, he or she first sustains compensable damages that can

be proven with reasonable certainty. Therefore, the patient could suffer an `injury' as a result of a negligent misdiagnosis, when (1) he or she experiences pain or other manifestation of an injury; (2) the disease advances beyond the point where it was at the time of the misdiagnosis and to a point where (a) it can no longer effectively be treated, (b) it cannot be treated as well or as completely as it could have been at the time of the misdiagnosis, or (c) the treatment would entail expense or detrimental side effects that would not likely have occurred had treatment commenced at the earlier time; or (3) the patient dies. This is not, of course, an exhaustive checklist; the overriding inquiry in all cases must be when the patient first sustained legally compensable damages. In any event, the injury occurs, as we have observed, when legally compensable tort damages first occur, regardless of whether those damages are discoverable or undiscoverable.'"

Green, 126 Md. App. at 412, 730 A.2d at 231 (citations omitted). Based on this definition and the petitioners' contention, made in response to an interrogatory, that "[a]t the time [Darwin] was in the care of the Defendants at North Arundel Hospital, the child's intracranial pressure was constantly increasing causing neurological deterioration moving him inevitably toward and ultimately causing massive brain injuries," the intermediate appellate court rejected the petitioners' argument and agreed with the respondents,' holding "that Darwin first suffered injury in Anne Arundel County." Id. at 412, 730 A.2d at 231.

The Circuit Court for Baltimore City had determined that Darwin's cause of action arose in Anne Arundel County, not because his injury manifested there, but because the alleged negligence occurred there. The Court of Special Appeals rejected that determination, holding instead, as the petitioners argued, that it is the occurrence of the injury that is dispositive. Rather than remanding the case for a new trial on that point, however, the intermediate appellate court determined the issue itself. In so doing, it erred. And the majority compounds the error by affirming.

The meaning of the word "injury" in the context of a misdiagnosis is, indeed, at the crux of any case involving where a cause of action arose. In such a case, the issue to be decided is exactly where the injury occurred, for the answer to that question is a necessary predicate to determining where the cause of action arose. This Court has considered this issue in the context of determining the applicability of the Health Care Malpractice Claims Act (HCMCA), Maryland Code (1976, 1998 Repl. Vol.) §§ 3-2A-01 through 3-2A-09 of the Courts and Judicial Proceedings Article, see Oxtoby v. McGowan, 294 Md. 83, 447 A.2d 860 (1982); see also Johns Hopkins Hosp. v. Lehninger, 48 Md. App. 549, 429 A.2d 538 (1981); Dennis v. Blanchfield, 48 Md. App. 325, 428 A.2d 80 (1981), and of Maryland Code (1987, 1998 Repl. Vol.), § 5-109 of the Courts Article, Maryland's statute of limitations for medical malpractice claims. See Rivera v. Edmonds, supra, Jones v. Speed, 320 Md. 249, 577 A.2d 64 (1990); Hill v. Fitzgerald, 304 Md. 689, 501 A.2d 27 (1985). We have concluded that "`injury' refers to legally cognizable wrongs or damage arising or resulting from the rendering or failure to render health care" and is "concerned with the invasion of legally protected interests coupled with harm." Oxtoby, 294 Md. at 94, 447 A.2d at 866. See also Hill, 304 Md. at 695-96, 501 A.2d at 30-31. As the Oxtoby Court indicated, this definition is consistent with the discussion of the word by the Wisconsin Supreme Court in State ex rel. McManus v. Board of Trustees of Policemen's Pension Fund, 138 Wis. 133, 119 N.W. 806, 807 (1909):

"`The word `injury,' in ordinary modern usage, is one of very broad designation. In the strict sense of the law, especially the common law, its meaning corresponded with its etymology. It meant a wrongful invasion of legal rights and was not concerned with the hurt or damage resulting from such invasion. It is thus used in the familiar law phrase damnum absque injuria. In common parlance, however, it is used broadly enough to cover both the damnum and the injuria of the common law, and indeed is more commonly used to express the idea belonging to the former word, namely, the effect on the recipient in the way of hurt or damage, and we cannot doubt that at this day its common and approved usage extends to and includes any hurtful or damaging effect which may be suffered by any one.'"

294 Md. at 94, 447 A.2d at 866.

Generally, the determination of when an "injury" occurs is a question of fact, Rivera, 347 Md. at 220-25, 699 A.2d at 1201-02; Hill, 304 Md. at 697, 501 A.2d at 31, the guide for which is the date on which the alleged negligent act was first coupled with harm. Hill, 304 Md. at 697, 501 A.2d at 31. Consequently, an injury may occur even though the patient has not then suffered all of the damage that may result from the negligent act. Oxtoby, 294 Md. at 97, 447 A.2d 860, interpreting Lehninger, supra., 48 Md. App. 549, 429 A.2d 538. The test that the Court of Special Appeals enunciated in Edmonds v. Cytology Services, supra, has been acknowledged by this Court. See Rivera, 347 Md. at 215-23, 699 A.2d at 1198-1202 (affirming that court's application of the rule of Hill v. Fitzgerald).

In Edmonds v. Cytology Services, the intermediate appellate court vacated the trial court's grant of summary judgment, reasoning:

"[Plaintiffs] did not proffer any expert opinion that Ms. Edmonds's cancer had not spread at any time prior to April 9, 1988 (i.e., the date five years prior to the filing of the claim) or April 11, 1985 (i.e., the date five years prior to Ms. Edmonds's death). But [Defendants] did not advance any evidence, beyond conclusory assertions, to show that Ms. Edmonds's cancer had advanced during those time periods. Nor do [Defendants] contend that Edmonds suffered any symptoms from the cancer prior to August 1988. Therefore, we conclude that the circuit court erred. . . ."

111 Md. App. at 272, 681 A.2d at 565. Significantly, agreeing with the Court of Special Appeals, this Court pointed out:

"[T]he evidence most favorable to the party opposing summary judgment is that the cancer that allegedly should have been detected in Mrs. Edmonds in July 1983 could remain dormant for as long as five years. The inference most favorable to the plaintiff is that there are no additional adverse consequences if the microscopic tumor remains unchanged. The Defendants have not attempted to demonstrate that [the plaintiff's expert's] statement is junk science. Nor did the Defendants develop from him the probability of the undiagnosed condition's remaining dormant for five years."

Rivera, 347 Md. at 223, 699 A.2d at 1202.

Here, the Circuit Court for Baltimore City made no findings of fact as to when the injury suffered by Darwin occurred. Indeed, the court was adamant that it did not have to make any such findings of fact. And, of course, where the injury occurred for venue purposes was not the issue at trial. Nor was the ground relied upon by the Court of Special Appeals argued by the respondents either in the trial court or in the intermediate appellate court. Thus, as the petitioners maintain, the Court of Specials Appeals made a finding of fact as to when the injury occurred. The majority has now done the same. That is not part of the appellate function.

In any event, that finding of fact is error under the test of Edmonds v. Cytology Services. That test provides alternative methods, depending upon the existing circumstances, of determining when an "injury" has occurred. To be sure, one alternative applies when the plaintiff experiences pain or other manifestation of an injury. But that alternative must be juxtaposed against the alternative that applies when the injury has progressed beyond the point at which it was at diagnosis, such that it cannot then be treated or treatment would be more difficult or expensive. The latter alternative must apply to the situation in which the misdiagnosis is of an asyptomatic injury. Logically, a different test, at least as difficult to prove, must apply when the condition that is misdiagnosed is symptomatic. That test, I submit, must require proof that the pain being experienced indicates a deterioration of the condition beyond where it was when the diagnosis was made.

If all that is required to satisfy the definition of "injury" is the continuation of the pain already being experienced before the misdiagnosis is made, or where aggravation or deterioration of the misdiagnosed condition is required and the continued pain is sufficient evidence of that aggravated or deteriorated condition, § 6-202(8) is mere surplusage. Such an interpretation renders the venue statute a nullity because an action for misdiagnosis of a syptomatic condition would necessarily, and always, have to be brought where the misdiagnosis occurred.

When Darwin presented at the hospital, he already was exhibiting symptoms of the condition it is alleged that the respondents misdiagnosed: he was experiencing pain and complaining of a headache. The question thus was, when he was discharged, had the condition progressed beyond the point at which it was when he presented? In other words, had the condition progressed to the prescribed extent so as to constitute an injury? Certainly, the presence of pain, the continuation of what already was being experienced, cannot be enough; where treatment has not been given, and, indeed, could not have been, because the nature of the condition was not diagnosed, the mere continuation of the experiencing of pain may or may not suffice to establish injury for purposes of the venue statute.

At best, the interrogatory answer on which the Court of Special Appeals placed, and the majority places, dispositive significance was, at best, conclusory; it simply was not sufficient to establish the extent of the deterioration in Darwin's condition and, in particular, when his condition reached the point at which such deterioration became an injury. It must be kept in mind that the interrogatory was not part of a record on summary judgment nor, at the time it was given, accepted as true or uncontradicted. Certainly, the answer was not such as to require the entry of summary judgment in the petitioners' favor. Indeed, the respondents did not so contend. In fact, and rightly so, more satisfactory proof was required. Compare Jones v. Speed, supra.

In Jones v. Speed, the plaintiff visited the defendant physician sixteen times, on each occasion complaining of severe headaches, the cause of which was discovered some five months after the plaintiff's last visit when the plaintiff suffered a seizure. The defendant failed to discover on any of the visits that the plaintiff's headaches were caused by a brain tumor, which a brain scan would have revealed. This Court concluded that although negligence producing an `injury' occurred on the first visit as well as each of the fifteen subsequent visits, the defendant's failure to detect "`a progressively worsening and changing medical condition'" proximately caused "`[e]ach severe and prolonged headache, and the final seizure . . . .'" 320 Md. at 256, 577 A.2d at 67. Discussing Jones, we pointed out in Rivera that the uncontradicted evidence on summary judgment in Jones was that an "undiagnosed cancer was progressing and worsening during the period following the misdiagnosis, even if the cancer was asymptomatic." See 347 Md. 223, 699 A.2d at 1202.

In this case, rather than decide the merits of whether and where Darwin suffered injury and, therefore, the proper venue for his action, the Court of Special Appeals should have determined only whether the Circuit Court for Baltimore City applied the proper test in reaching its venue decision. Accordingly, I believe that a new trial is required to be conducted in the proper venue, for the determination of which this case should be remanded.

III.

Although the importance of the trial right, whether by jury or the court, is well established in both the Maryland Constitution, see art. 24, Maryland Declaration of Rights; see also art. 19, Maryland Declaration of Rights ("That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land."), and the Federal Constitution, see U.S. Const. amend. XIV, as an element of the process that is due a litigant, this Court has not been called upon to address the precise issue presented in this case. We have, however, considered whether the right of a civil party litigant to attend his or her trial is absolute and concluded that it is not. Casson v. Casson, 226 Md. 575, 576, 174 A.2d 581, 582 (1961); Gorman v. Sabo, 210 Md. 155, 167, 122 A.2d 475, 481 (1956).

Our conclusion is consistent with the decisions rendered by the majority of courts that have considered the issue. See Rupert-Torres v. Hospital San Pablo, Inc., 205 F.3d 472, 478 (1st Cir. 2000); Levi v. District of Columbia, 697 A.2d 1201, 1205 (D.C.App. 1997); Helminski v. Ayerst Laboratories, 766 F.2d 208, 217 (6th Cir. 1985); In re Richardson-Merrell, Inc. Bendectin Products, 624 F. Supp. 1212, 1224 (S.D.Ohio 1985); Ryfeul v. Ryfeul, 650 P.2d 369, 374 (Alaska 1982); Florida Greyhound Lines, Inc. v. Jones, 60 So.2d 396 (Fla. 1952); Morley v. Superior Court, 131 Ariz. 85, 638 P.2d 1331, 1334 n. 1 (1981); Whitfield v. Roth, 10 Cal.3d 874, 112 Cal.Rptr. 540, 519 P.2d 588 (1974); Purvis v. Inter-County Telephone Telegraph Co., 203 So.2d 508, 511 (Fla.Dist.Ct.App. 1967); Gage v. Bozarth, 505 N.E.2d 64 (Ind.App. 1987); Dickson v. Bober, 269 Minn. 334, 130 N.W.2d 526, 530 (1964) ("determination of whether a plaintiff unable by reason of his injuries to contribute to or understand the trial proceedings should be permitted . . . to attend the trial must rest in the sound discretion of the trial court . . ."); Mason v. Moore, 226 A.D.2d 993, 641 N.Y.S.2d 195 (1996); Caputo v. Joseph J. Sarcona Trucking Co., 204 A.D.2d 507, 611 N.Y.S.2d 655 (1994); Matter of Radjpaul v. Patton, 145 A.D.2d 494, 535 N.Y.S.2d 743 (1988); Reems v. St. Joseph's Hospital and Health Center, 536 N.W.2d 666 (1995); Cary ex rel Cary v. Oneok, Inc., 940 P.2d 201 (Okla. 1997); Bremner by and through Bremner v. Charles, 312 Or. 274, 821 P.2d 1080 (1991).

Some of these cases do not permit the requested exclusion and, so, do not spell out the circumstances under which exclusion would be upheld. Thus, they do not define, with specificity, the limits of the trial court's discretion but, rather, they simply recognize that the right to be present is not absolute, stating the general and non specific rule that "[a]bsent a voluntary waiver . . . only in the case of extreme circumstances may a party be excluded from the proceedings." Cary ex rel Cary, supra, 940 P.2d at 204. See also Ryfeul, supra, 650 P.2d at 372 (stressing the circumstances of the case as basis for holding that proceeding with a hearing to modify a divorce decree in the absence of one of the parties was error); Florida Greyhound Lines, Inc., supra, 60 So.2d at 397 (noting the power of the court to "regulate the appearance [of a party] to prevent the opposite party from being victimized and the jury from being deceived by . . . subterfuge . . . ."); Purvis, supra, 203 So.2d at 510-11 (noting the distinction between Florida Greyhound Lines and Dickson v. Bober, supra, and purporting to understand the result reached in the latter); Mason, supra, 641 N.Y.S.2d at 197 (stating "absent an express waiver or unusual circumstances, a party to a civil action is entitled to be present during all stages of the trial"); Matter of Radjpaul, supra, 535 N.Y.S.2d at 745 (same).

On the other hand, Whitfield v. Roth, supra, 112 Cal.Rptr. 540, 519 P.2d at 604 n. 27, a medical malpractice case, held that limiting a minor plaintiff who was paralyzed in both legs and his right arm to a 10-minute appearance in the courtroom was not an abuse of discretion. Cary, supra, also is illustrative of this group of cases. There, a badly burned six year old boy was excluded from the courtroom by the trial court, "because he [wa]s scarred so badly [the trial judge] th[ought] it would be unfairly prejudicial." Answering the question whether a party could be excluded solely based upon a disfigurement, the Oklahoma Supreme Court opined:

"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. 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. . . .

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.'"

Cary, 940 P.2d at 204 (quoting Florida Greyhound Lines, supra, 60 So.2d at 396) (internal citations omitted).

Most of the cases holding that party presence is not absolute recognize that "under limited circumstances a party's involuntary exclusion might be justified," i.e., where the mere presence of that party would prejudice the other party with regard to liability and that party's presence, because the party is unable to understand, participate in or contribute to, the proceedings, would not aid the fair administration of justice. See, e.g., Helminski, 766 F.2d at 217. They hold, however, that "absent disruptive behavior, involuntary exclusion of a party who is able to comprehend the proceedings and aid counsel would constitute a denial of due process since exclusion of such a party would deny him the right to obtain a fair trial." Id. See also Rupert-Torres, supra, 205 F.3d at 478; Reems, supra, 536 N.W.2d at 669; Caputo, supra, 611 N.Y.S.2d at 656; Bremner, supra, 821 P.2d at 1085; In re Richardson-Merrell, Inc., supra, 624 F. Supp. at 1224; Dickson, supra, 130 N.W.2d at 530; Gage, supra, 505 N.E.2d at 67.

Helminski is representative. It involved an injury that resulted in the plaintiff, who was an autistic child with an extremely low IQ and unable to speak, needing daily, twenty-four hour care. The defendants moved to exclude the plaintiff from the liability phase of the trial, arguing that his appearance before the jury would be prejudicial to their case. See 766 F.2d at 212. The district court agreed. Id. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed. Although the basis of the ruling was "harmless error," the court addressed the merits of the case, developing a two step analysis to determine whether a party's involuntary exclusion from the liability phase of trial violates due process:

"In short, the defendant who seeks to exclude a handicapped plaintiff must establish at a hearing that the plaintiff's presence would prevent or substantially impair the jury's performance of its fact-finding task. The requisite showing of prejudice cannot be satisfied simply by establishing that a plaintiff has a physical or mental injury; the party seeking exclusion must establish that the party's appearance or conduct is likely to prevent the jury from performing its duty. We reiterate that a party's ability to comprehend the proceedings or assist counsel is not the relevant inquiry at this juncture — the issue is whether the party's presence will unfairly prejudice the proceedings in his favor.

Should the district court determine that the party's mere presence would be prejudicial, the court must next consider whether the party can understand the proceedings and aid counsel. If the trial court concludes that the party can comprehend the proceedings and assist counsel in any meaningful way, the party cannot be involuntarily excluded regardless of prejudicial impact; in such a case, cautionary instructions will protect the interests of the defendant in a fair trial. Exclusion of a party who is able to comprehend the proceedings and aid his attorney would infringe upon the `fundamental standards of fairness which every litigant before a federal court has a right to expect,' Drayton v. Jiffee Chemical Corp., 591 F.2d 352, 361 (6th Cir. 1978), and hence, would constitute a deprivation of due process which could be remedied only by granting a new trial."

Id. at 218.

The premise on which the court proceeded is that "[a]n essential component of a fair trial is `a jury capable and willing to decide the case solely on the evidence before it,"' that the court has the responsibility to "safeguard the jury's ability to decide the case based upon the evidence presented rather than on emotional factors." Id. at 217. The court recognized, however, that there is a difference between juror sympathy that presents the potential for juror prejudice and juror sympathy that actually results in juror prejudice, "juror sympathy alone [being] insufficient to establish juror prejudice." Id. The court also noted that, "[g]enerally, the jury will follow the court's instructions and fulfill its promise to decide the case solely on the facts." Id. Thus, only when the mere presence of a party would render the jury unable to arrive at an unbiased judgment concerning liability, the court made clear, would the rule it enunciated be invoked. Id. Further, the court noted that the burden of persuasion on the issue rests with the defendant who asserts prejudice, stating: "To allow involuntary exclusion on any other basis would permit the presumption that an injured person's presence alone will always deter the jury from its fact-finding mission. Such a presumption would only institutionalize a reaction based solely upon appearance." Id.

Although the minority position, there also are cases holding that a plaintiff has an absolute right to be present at his or her civil trial. See, e.g., Rozbicki v. Huybrechts, 218 Conn. 386, 589 A.2d 363, 365 (1991) (recognizing that "a party's constitutional right to a civil jury trial encompasses the right to be present in the court during all phases of the trial, including proceedings prior to the trial on the merits of the case."); Odum v. Corn Products Refining Co., 173 Ill. App. 348, 352 (1912) ("We know of no law that prevents interested persons from being present at the hearing of their case, even though their unfortunate condition was such as to enlist the sympathy of the jury."); Ziegler v. Funkhouser, 42 Ind. App. 428, 85 N.E. 984, 986 (1908) (every litigant has a right to be present in person and be heard by counsel on the trial of his case); McIntosh v. McIntosh, 79 Mich. 198, 203, 44 N.W. 592 (1890) (acknowledging that the exclusion of witnesses generally is within the discretion of the court, but pointing out that "[t]here is no rule . . . by which the court is authorized to exclude a party to the controversy."); Leonard's of Plainfield, Inc. v. Dybas, 130 N.J.L. 135, 31 A.2d 496, 497 (1943) (determining that the "right of the parties to the cause to be present in person and by counsel at all stages of the trial, except the deliberations of the jury, is basic to due process."); Carlisle v. County of Nassau, 64 A.D.2d 15, 408 N.Y.S.2d 114, 116 (1978) ("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 the jury"); Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 782, 784 (1957) (parties are entitled to be present at all stages of a civil trial).

From the foregoing lines of cases, several things are clear. The right to be present may be waived. The involuntary exclusion of a party from that party's trial or part thereof is disfavored. Those courts that permit involuntary exclusion, in which the right of a party to be present is held not absolute, agree on this point. Those that are most liberal in involuntarily excluding a party acknowledge that such exclusion may be justified only "under limited circumstances," Helminski, 766 F.2d at 217, while those least liberal phrase the test in terms of "extreme," Cary ex rel Cary, supra, 940 P.2d at 204, or "unusual," Mason, supra, 641 N.Y.S.2d at 197, circumstances.

In any event, the physical appearance or condition of a party may not alone justify exclusion. To justify the involuntary exclusion of a party, there must be shown prejudice to the opposing party to the extent that the opposing party will not be able to obtain a fair trial. Further, the party seeking exclusion bears the burden of showing that only through exclusion can a fair trial be obtained. Helminski, 766 F.2d at 217.

This Court has twice addressed the question of proceeding with a trial in the absence of a party. On each occasion, the context was the denial of a request for continuance. In both cases, we upheld the trial court's exercise of discretion. In neither case was there a motion by one party to exclude the other. In Gorman, having observed that the defendants did not argue, either in brief or at oral argument, that their case would be harmed by the refusal to allow the continuance, in short, that "[n]o actual prejudice was claimed, much less shown," 210 Md. at 167, 122 A.2d 481, the Court stated: "The right of a party to a cause to be present throughout the trial is not an absolute right in a civil case and in the discretion of the court, with due regard to the circumstances as to prejudice, the case may be tried or finished when a party, including a defendant, is absent." Id.

In Casson, it was the plaintiff who was absent. We described the circumstances surrounding the continuance request as follows:

"On the first day of trial, February 20, 1961, she testified fully, in both direct and cross examination. That night she had a heart attack, and her counsel sought a continuance. Upon being informed that other witnesses were not available, because they had been told by the plaintiffs not to

appear, the trial court stated that the case would be carried over until February 23rd, but that no further continuance would be granted. On February 23rd, counsel requested a further continuance on the ground that Mrs. Casson was unable to appear; that he had summoned other witnesses, but learned that Mrs. Casson had told them to disregard the summons; that Mr. Casson was present but declined to testify unless his wife was present."

226 Md. at 576, 174 A.2d at 582. We relied on Gorman in affirming the trial court's denial of the continuance request, noting both that the plaintiff had no absolute right to be present and that there was no showing of prejudicial error. Id. at 576-77, 174 A.2d at 582. Neither Gorman nor Casson is directly apposite to the question this case presents. Far from being involuntary exclusion cases, both fall closer to the "waiver" side of the equation.

Safeway Stores, Inc. v. Watson, 317 Md. 178, 562 A.2d 1242 (1989), however, sheds some light on where Maryland stands on the issue of the involuntary exclusion of parties from their trials. In that case, a worker's compensation dispute, Safeway, a corporation, sought to designate as its representative a claims adjuster employed by a company that Safeway retained to adjust its worker's compensation claims. The claims adjuster, who was slated to testify for Safeway, also had investigated the claim. Id. at 179, 562 A.2d at 1243. Ruling that the claims adjuster was "not entitled to the same privileges that a representative of a defendant would be," the trial court excluded him from the courtroom after voir dire, except for when he testified. Id. at 179-80, 562 A.2d at 1243.

At issue in Safeway Stores was the interpretation of Maryland Rule 2-513, which provided:

"On motion of any party made before testimony begins the court shall order that witnesses other than parties be excluded from the courtroom before testifying, and it may do so on its own initiative or on motion of any party made after testimony begins. The court may continue the exclusion of a witness following the testimony of that witness if a party

indicates that the witness may be recalled to give further testimony. A party that is not a natural person may designate a representative to remain in the courtroom, even though the representative may be a witness. An expert witness who is to render an opinion based on testimony given at the trial shall be permitted to remain during that testimony."

317 Md. at 179, 562 A.2d at 1243. We saw the issue in turn resolving into two questions: what, if any, nexus was required between the representative designated and the "party that is not a natural person," and further, whether the trial court had discretion to disapprove the designation that party made? After reviewing the history of the Rule, we concluded, "The language and history of Rule 2-513 make it clear that a party that is not a natural person has very broad latitude in the selection of a representative when witnesses are excluded, and the exercise of this right is not subject to the discretion of the trial judge." Id. at 183, 562 A.2d at 1245. Relevant to this latter point, we further explained that "the trial judge has inherent authority to remove parties, witnesses, and spectators under certain circumstances, where that action is necessary to preserve decorum or to continue the orderly proceedings of the court, and a designated representative of a party is not exempt from the operation of that authority." 317 Md. at 184 n. 4, 562 A.2d at 1245 n. 4. Thus, we determined that the trial court erred in excluding Safeway's designated representative from the courtroom.

The Court next considered whether the error was reversible. The claimant argued that the burden was on Safeway to prove both the error and the prejudice emanating from it. Safeway, on the other hand, acknowledging the accuracy of the claimant's statement of the general rule, argued that where a party is denied an important right that is very likely prejudicial to it and actual prejudice is difficult to prove, the burden should be on the "party advantaged by the erroneous disqualification to prove that the disqualification did not influence the outcome of the litigation." 317 Md. at 184, 562 A.2d at 1245. We concluded that it is appropriate to presume prejudice from the wrongful exclusion of a party, or its representative, from a trial. Id. We went on to opine:

"Experienced trial attorneys and judges understand the importance of `humanizing' a corporate defendant in a jury trial. Moreover, a party is entitled to be present to have a firsthand view of the proceedings for purposes of evaluating the constantly changing prospects or exigencies for settlement, and to participate in tactical decisions that must be made, sometimes quickly, in the course of a trial. Finally, the attorney for Safeway was deprived of the presence at his side of the principal investigator in the case. Whether we consider these facts as mounting up to the necessary proof of prejudice by Safeway, or simply consider them in determining that a presumption of prejudice is appropriate in this case, the result is the same. The claimant has not overcome the proof or presumption, and the result must be a new trial."

Id. at 184, 562 A.2d 1246.

Therefore, albeit by rules action, Maryland courts have no discretion to interfere with the choice of representatives made by parties who are non-natural persons. Indeed, they may exclude such party designated representatives only "to preserve decorum or to continue the orderly proceedings of the court." Thus, their ability to affect the trial presence of such parties is quite limited.

The Safeway Stores analysis informs the resolution of the question this case presents because it demonstrates this Court's reluctance to permit the trial courts to interfere with a civil party's decision as to whether to attend trial. Certainly, if a trial court may not exclude the representative designated by a party that is a non natural person, even one that will testify at the trial when there is a sequestration order in effect, by parity of reasoning, a similar restriction must exist with respect to the court's power to exclude parties who are natural persons. Permitting the court to involuntarily exclude a party who is a natural person on the basis of that party's appearance and mental condition is to give the court more authority to exclude parties who are natural persons than it has with respect to parties that are non natural persons. Indeed, the prejudice emanating from allowing a witness, who ordinarily would be excluded by a sequestration order, to remain in the courtroom and to hear the testimony of other witnesses before testifying may be greater than that caused by a disabled party's appearance, at least with proper instruction of the jury. To be sure, part of the rationale underlying the rule permitting a non natural person to designate someone to represent it at trial is to allow that party to provide assistance to its counsel during the trial and, logically, it makes sense for the party to so use the representative. There is nothing that requires the party to designate on that basis and, indeed, under Safeway Stores, the court cannot inquire as to the basis for the designation, which need not even be confined to the employees of the designating party.

Applying the Safeway Stores analysis, I agree with the approach adopted by Cary v. Oneok, supra. In that case, as indicated, the Court rejected the proposition that a party could be excluded solely on the basis of appearance and, acknowledging a party's right voluntarily to waive presence, permitted the involuntary exclusion of a party "only in the case of extreme circumstances." 940 P.2d at 204. In Safeway Stores, the exception was stated in terms of preserving decorum and continuing the orderly proceedings of the court. Although stated differently, I believe the articulated exceptions are comparable. Accordingly, I would hold that, absent a voluntary waiver, a party may not be excluded from his or her trial except "to preserve decorum or to continue the orderly proceedings of the court." Safeway Stores, 317 Md. at 184, 562 A.2d at 1245.

I am not persuaded by Helminski and those cases permitting the exclusion of parties who are unable to aid counsel or understand the proceedings and whose physical appearance is determined to be prejudicial to the other party. Helminski recognizes a category of cases in which the mere presence of a party would prevent the jury from reaching an unbiased verdict. The decision whether a particular case falls into that category of cases is left to the discretion of the trial court. At the same time, the Helminski court acknowledges that juror sympathy alone is insufficient to establish juror prejudice and that jurors generally follow the court's instructions and abide by their oath to decide cases only on the facts. Where the party whose appearance is prejudicial is not mentally handicapped, or at least not so much as to render him or her unable to comprehend the proceedings or assist counsel, involuntary exclusion is not an option; the instructions to the jurors will suffice to protect the other party, "cautionary instructions will protect the interests of the defendant in a fair trial." Id. at 218. On the other hand, if the party, in addition to an unsightly appearance, suffers from a mental condition that prevents him or her from understanding the proceedings or assisting counsel, exclusion is required; jury instructions are deemed insufficient to protect the other party. In the one case, the jury is trusted to abide by its oath, while in the other, it is not. And the only basis for the distinction is the mental condition of the party.

Despite the Helminski court's protestations to the contrary, the Helminski court sanctions the exclusion of a party on the basis of that party's physical appearance in those cases where the party does not understand the proceedings and cannot assist counsel. I share the Oklahoma Supreme Court's concern about the drawing of such a distinction:

"There may need to be a re-examination of those cases, 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). Those cases which followed this reasoning and were decided after the ADA's enactment did not address the issue."

Cary, 940 P.2d at 205 n. 6 (internal footnotes omitted) (citing Kroll v. St. Charles County, 766 F. Supp. 744 (E.D.Mo. 1991) (noting that the ADA applies to physical surroundings of a federal courthouse)); see also Livingston v. Guice, 68 F.3d 460 (4th Cir. 1995) (holding that a judge was not immune from liability for violating the ADA by not accommodating a physically handicapped person who needed special access to a restroom during trial).

I also am concerned with the lack of a principled basis for trusting the jury, under proper instructions, in the one case, and not trusting the jury in the other. If, in the case of a party who is able to understand the proceedings or assist counsel, but whose appearance prejudices the other party, jury instructions are sufficient to protect that party, it is difficult to see why those same instructions would not suffice in the case of a party with similar appearance, but who is unable to assist counsel or comprehend the proceedings. Under the Helminski analysis, because it is possible for a party to have a minimal appreciation of the proceedings without being able to assist counsel, it is conceivable that two persons with identical appearances, but different mental conditions, will be treated differently, i.e. one excluded and the other allowed to remain in the courtroom. In this case, under Helminski, if it were shown that Darwin had some ability to understand what was going on around him, he would not have been excludable unless he was disruptive.

Further, "a stereotypical assumption that a party's disability will prejudice the jury," see Mason, 641 N.Y.2d at 197, is an insufficient ground for excluding that party from the trial. Despite its recognition of the distinction to be made between juror sympathy and juror prejudice, the Helminski approach permits the elevation of a stereotypical assumption to grounds for involuntarily excluding a party without providing any rational basis for doing so. It is sufficient, we are instructed, that the trial court decides after viewing the party that the party's appearance will result in juror prejudice.

Finally, voir dire is the process by which prospective jurors are examined to determine whether cause exists for their disqualification. See Boyd v. State, 341 Md. 431, 435, 671 A.2d 33, 35 (1996). It is, moreover, the mechanism whereby the right to a fair and impartial jury is given substance. Dingle v. State, 361 Md. 1, 10, 759 A.2d 819, 823 (2000). A juror who would be unduly influenced by sympathy for a party to the point of not being able to abide by his or her promise to decide the case solely on the facts and in accordance with the court's instructions is not a fair and impartial juror and, thus, is subject to being stricken for cause. Although the trial judge is the focal point of the voir dire process, whether the jury is able to decide the case on the facts is not a decision to be made by the court in a vacuum. Consequently, neither the timing of the inquiry, nor the nature of the remedy, was appropriately addressed in Helminski. Thus, rather than the court's making inquiry into the jury's ability to be fair and impartial after the jury has been impaneled, the proper time to inquire was before the jury was impaneled and the remedy for partiality was exclusion from the jury, not exclusion of the party from the trial.

To be sure, Helminski quite correctly recognizes that there is a difference between juror sympathy and juror prejudice. Stated differently, the likelihood of jury sympathy is not the equivalent of prejudice. "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." Cary, 940 P.2d at 205. This view is consistent with the Court of Special Appeals' decisions touching on the subject. See Ford Motor Co. v. Wood, 119 Md. App. 1, 17, 703 A.2d 1315, 1322, cert. denied, 349 Md. 494, 709 A.2d 139 (1998); Fowlkes v. State, 117 Md. App. 573, 584, 701 A.2d 862, 868 (1997), cert. denied, 348 Md. 523, 704 A.2d 1244 (1998). In both cases, the intermediate appellate court noted that "a jury is not expected to judge a case without sympathy." Wood, 119 Md. App. at 17, 703 A.2d at 1322; Fowlkes, 117 Md. App. at 584, 701 A.2d at 868.

In Wood, the question was whether a juror with lung cancer should have been stricken for cause. In Fowlkes, the controversy was over whether the court abused its discretion in refusing to propound a voir dire question on sympathy. In that regard, Fowlkes, on which Wood relied, observed:

"The purpose of voir dire is to ferret out bias or prejudice conceived prior to entry into the courtroom that would prevent a juror from fairly and impartially deciding the case based on the evidence presented in the courtroom. The appellate courts of this State have rightfully presumed that a person with racial, ethnic, or gender bias cannot render such a fair and impartial verdict but, in our view, sympathy falls into a different category. The question, with respect to a specific bias, is whether the bias exists. If determined to exist, a trial judge may excuse a prospective juror even if the person purports to be able to render a fair verdict. In contrast, we expect normal people to experience sympathy, and the question in that instance is whether the person will be unduly swayed by sympathy. In other words, a jury is expected to decide a case without bias or prejudice; it is not expected to do so without sympathy but is expected to follow the court's instruction that it not be unduly swayed by it. In most cases, it would be difficult for a prospective juror to know the degree to which feelings of sympathy would be aroused until the evidence is presented. In every case, there are factors that may evoke feelings of sympathy."

117 Md. at 584-85, 704 A.2d at 868.

Here, Darwin Green did not voluntarily waive the right to be present at trial. Nor was he excluded "to preserve decorum or to continue the orderly proceedings of the court" or because he engaged in, or was likely to engage in, disruptive conduct. Rather, Darwin was excluded because of his appearance and because of his inability to understand the proceedings or to assist counsel. In excluding Darwin, the trial court stated:

"The burden of persuasion is to the moving party, and they have carried that burden in this instance. The Defendant who seeks to exclude a handicapped plaintiff must establish that the presence of the plaintiff would prevent and substantially impair the jury's performance. The impairment or the prejudice must be so great that the jury instructions would not likely correct that prejudice.

And having viewed the tape, the Court is convinced that any viewing of the Plaintiff in person or by a video would leave any party in a position to be emotionally struck and otherwise feeling sympathy for the Plaintiff."

The court was overly sensitive that the jury would be sympathetic to the petitioner and, more to the point, without any basis for so concluding except the viewing of the video, concluded that the jury would be unduly swayed by that sympathy to the prejudice of the respondents. The record does not reflect any basis for that conclusion. Certainly, it does not appear that the jurors were voire dired on the effect that Darwin's presence in the courtroom would have or whether they could, despite any sympathetic feelings, decide the case solely on the facts and the law, as instructed. In short, there is absolutely no basis in this record for the court to conclude that the jury could not "decide the case solely on the evidence before it." Helminski, 766 F.2d at 217.

Neither the trial court, nor the Court of Special Appeals, nor even the majority has articulated any reasons or analyses of how the plaintiff's presence would evoke more than the expected feelings of sympathy. And we have not been told how his presence in the courtroom for the limited time the petitioners wished would render the jury incapable of returning a verdict decided solely on the facts.

In conclusion, there is, as the petitioners and amicus point out, another dimension and significance to this case, namely, the message the rule the majority adopts sends to the disabled. The petitioners and amicus argue that "any party to a civil action has both a federal and state constitutional right to be present at trial" and that a "litigant's presence serves the functions of assistance to counsel, truthful fact-finding, presentation of direct evidence, assurance of fairness of proceedings and to assure the public's perception of fairness of the proceedings. Exclusion, on the other hand, causes harm to the party, society and our court system as a whole." Furthermore, they continue, "[i]n the case of the disabled, party exclusion broadcasts the message that disabled litigants do not have the same rights as the rest of us [by implying] a lower legal status for the disabled, which keeps alive unnecessary and unwarranted stereotypes and prejudices against the disabled." Noting the promise of the enactment of the Americans With Disabilities Act (the ADA), 42 U.S.C. § 12101-12213 (1994), the guarantee to the disabled of equal opportunity, full participation and equal access and, thus, the recognition that "disability is a natural part of the human experience," 42 U.S.C. § 6000 (a)(2) (1994), the petitioners and amicus lament that "exclusion of a party from trial based on a disability is equivalent to discrimination" and, consequently, submit that "a trial court does not have discretion to remove a litigant's basic rights, irrespective of the litigant's physical and mental limitations, unless an overriding objective, necessary and compelling, and narrowly tailored to meet the court's objective exists." I do not believe, as I have discussed, that this Court's holding responds to an overriding, necessary, and compelling objective consistent with the Court's mandate and purpose.

I would hold that the trial court erred in excluding Darwin Green from the liability phase of his trial.

Judge Rodowsky has authorized me to state that he concurs with the views expressed in Part III of this dissenting opinion.

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(8) Tort action based on negligence — Where the cause of action arose . . . ."