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Johnson v. Raively

January 15, 2010

MICHELLE JOHNSON, MICHAEL JOHNSON, HER HUSBAND, AND KYLA JOHNSON, A MINOR BY AND THROUGH HER MOTHER AND GUARDIAN AD LITEM, MICHELLE JOHNSON, PLAINTIFFS-APPELLANTS,
v.
DAVID RAIVELY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3369-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 21, 2009

Before Judges Fisher and Sapp-Peterson.

Plaintiff, Kyla Johnson, appeals from the order of the Law Division granting defendant's summary judgment motion dismissing her complaint alleging a permanent injury under the Automobile Insurance Cost Reduction Act (AICRA). N.J.S.A. 39:6A-1 to -35. We now reverse.

Plaintiff's claim arises out of an automobile accident that occurred when the vehicle in which she was traveling was struck by a vehicle driven by defendant, David Raively, after he failed to stop at a stop sign. Because of the impact, an airbag deployed and hit the right side of plaintiff's face, injuring her. At the Virtua Hospital emergency room, plaintiff received stitches and wound care for the injury to her right eye. The injury healed but left a visible scar, fifteen millimeters in length and two millimeters in thickness. Plaintiff's expert, Dr. Gary Goldstein, a plastic surgeon, opined that the scarring was permanent.

Defendant moved for summary judgment, arguing that plaintiff's injuries failed to vault the verbal threshold under AICRA. Plaintiff appeared at oral argument where the trial court had the opportunity to observe plaintiff's facial injuries:

THE COURT: The scar's in the corner of the right eye. It appears to be - - I know the doctor said [fifteen] millimeters. I'm bad with millimeters. I'm a foot and inch guy. So, I would say it's about [a] half inch?

[PLAINTIFF'S ATTORNEY]: Yeah. I think that's right.

THE COURT: Half inch long. It's at the bottom right corner of her eyelid. . . . And, you could actually see it more when her eyes are open th[a]n when they're closed. It seems to be, what, [an] eighth inch wide?

[PLAINTIFF'S ATTORNEY]: I think that's good.

THE COURT: You think that's right?

[PLAINTIFF'S ATTORNEY]: Yes.

[DEFENDANT'S ATTORNEY]: - - maybe a little bit less, but ...


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