RICHARD L. JORDAN v. SHIRISH J. THAKER,

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2318-04T22318-04T2

RICHARD L. JORDAN,

Plaintiff-Appellant,

v.

SHIRISH J. THAKER,

Defendant-Respondent.

____________________________________

 

Argued February 16, 2006 - Decided July 13, 2006

Before Judges Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Mercer County,

Docket No. L-1265-03.

Timothy J. McNamara argued the cause

for appellant (Stark & Stark, attorneys;

Andrew M. Salmon, of counsel and on the

brief).

Mario C. Colitti argued the cause for

respondent (Sherman & Viscomi, attorneys;

Mr. Colitti, on the brief).

PER CURIAM

Plaintiff Richard L. Jordan appeals from the order of the Law Division granting defendant's summary judgment motion, and dismissing his personal injury cause of action. Plaintiff's claim arises out of an automobile accident in which his truck collided head-on with defendant Shirish J. Thaker's car, causing lacerations to plaintiff's forehead. The injury healed, but left visible scars.

In a report prepared one year after the accident, Dr. Irwin A. Moskowitz indicated that plaintiff's "facial area revealed that there was a 2 cm well-healed but obvious transverse scar in the mid forehead. In addition, there was a 1 cm laceration just above his right eyebrow." In this light, the sole question presented to the trial court was whether these scars constituted sufficient evidence to survive defendant's summary judgment challenge. The court concluded that, as a matter of law, plaintiff had failed to present sufficient evidence to satisfy the verbal threshold limitation in his insurance policy. We disagree and reverse.

N.J.S.A. 39:6A-8 requires plaintiff to produce evidence that he sustained an injury, which resulted in "significant disfigurement or significant scarring." In granting defendant's motion, the trial court fount that:

[T]here are no genuine issues of material fact as to the absence of a significant disfigurement or scarring within the meaning [of the statute]. A view of the scar clearly does not[,] in this Court's opinion[,] raise a genuine issue of material fact that the scarring is unsightly, renders [plaintiff's] appearance as imperfect or deformed in any manner and will grant the motion for summary judgment.

We are satisfied that given the location and visibility of plaintiff's scars, whether they amount to "significant scarring" is a question to be decided by a jury.

We recently considered a similar question in Soto v. Scaringelli, 384 N.J. Super. 431, 432 (App. Div. 2006). The plaintiff in Soto, a pedestrian, sued the owner and operator of the car that struck her, to recover damages for injuries sustained to her shoulder. Surgery performed to repair the injury to her shoulder left a four inch scar which the trial court, in granting defendant's summary judgment motion, characterized as "not readily discernible." Id. at 434.

In reversing the trial court, we reaffirmed the objective standard first articulated in Hammer v. Twp. of Livingston, 318 N.J. Super. 298, 309-10, (App. Div. 1999), a case examining the factors to be considered in determining whether a scar constitutes "disfigurement" under the Tort Claims Act, N.J.S.A. 59:1-1 to -12-3. Under these objective criteria, a scar must impair or injure "the beauty, symmetry, or appearance of a person. . . ." Id. at 308 (quoting Falcone, supra, 135 N.J. Super. at 145. To qualify as a "disfigurement" under the pre-AICRA threshold requirements, "a scar must be 'objectively significantly disfiguring.'" Ibid. (quoting Puso v. Kenyon, 272 N.J. Super. 280, 292 (App. Div. 1994).

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 review a grant of summary judgment de novo, using the same standard as the trial court under R. 4:46-2(c). Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). Thus, we must determine whether a genuine issue of material fact is present and, if not, evaluate whether the lower court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Applying these standards of review, we are satisfied that the trial court erred in dismissing plaintiff's case as a matter of law. Because the scars are located on plaintiff's forehead, their prominence cannot be readily concealed. Using only the treating physician's description, we conclude that a rational jury could find that these scars impair or injure the symmetry of plaintiff's face, and adversely and significantly affect his appearance.

We conclude our analysis here with the same cautionary note with which we concluded our analysis in Soto:

Clearly there can be scars that are so minimal and so concealed from view that no reasonable person could find them significant. We do not find that to be the case here. On the other hand, a jury may yet find that plaintiff's scarring is not significant. We express no view on that prospect.

[Soto, supra, 384 N.J. Super. at 438-39.]

Reversed and remanded.

 

The Hammer standards are themselves derived from Falcone v. Branker, 135 N.J. Super. 137, 145-48 (Law Div. 1975).

(continued)

(continued)

5

A-2318-04T2

July 13, 2006