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,
DAVID RAIVELY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3369-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 I'll go with that.
THE COURT: Okay. All right. Thanks.
[DEFENDANT'S ATTORNEY]: Can we just put on the record how close you were to her, please, your Honor?
THE COURT: Sure. A foot and a half, two feet?
[PLAINTIFF'S ATTORNEY]: Sure.
[DEFENDANT'S ATTORNEY]: Okay.
The court noted that "the scar is [a] slightly different color from her natural skin tone. It's at the corner of the eyelid where there [are] some natural folds because of the way the eye functions." The court granted summary judgment to defendant, finding that the scar did not significantly detract from appellant's appearance:
And with respect to the scar, quite frankly, I think she's a very pretty girl and she's very attractive, and where the scar is it's not in the middle of her forehead. It's rather small. It's a little discolored, but it's in the area where there are the natural folds of the eyelid. I don't find that either . . . injury meets the verbal threshold so I'm going to grant the summary judgment.
On appeal, plaintiff contends "the trial court erred in holding that [her] scarring was so insubstantial that no rational fact finder could determine that it significantly detracted from her appearance." We are persuaded, from our review of the photographs included in the record on appeal, that given the location and visibility of plaintiff's scar, whether it amounts to "significant scarring" under AICRA is a question for the jury to resolve.
In Soto v. Scaringelli, 189 N.J. 558, 564 (2007), the Court held that a plaintiff seeking to recover damages under AICRA based upon permanent scarring must establish, through objective evidence, that the scarring has substantially detracted "from the automobile accident victim's appearance, or so impairing or injuring the beauty, symmetry, or appearance of a person as to render him or her unsightly, misshapen, or imperfect." Id. at 564. The Court directed trial courts considering summary judgment motions based upon scarring to develop a record that includes "the trial court's direct observations and description of the disfigurement or scarring alleged to be significant, together with an accurate photographic record thereof." Ibid.
We review a grant of summary judgment de novo, using the same standard as the trial court under Rule 4:46-2(c). Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). In reviewing a motion for summary judgment, the trial court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Therefore, the court must assume plaintiff's version of the facts is true and give plaintiff the benefit of all favorable inferences. Id. at 536.
We are satisfied that the trial court erred in dismissing plaintiff's case as a matter of law. Plaintiff's scar is located to the bottom right of her eyelid and is not only clearly visible but also discolored. Its prominence cannot be readily concealed and plaintiff has testified that it is visible to her when she looks in the mirror. Viewing the evidence in a light most favorable to plaintiff, we conclude that a rational jury could find that this facial scar has impaired or injured the symmetry of plaintiff's face and adversely and significantly affected her appearance.
Reversed and remanded for a new trial. We do not retain jurisdiction.
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