ANA GARCIA v. NEW JERSEY TRANSIT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANA GARCIA,

Plaintiff-Appellant,

v.

NEW JERSEY TRANSIT, and ARMANDO RODRIGUEZ,

Defendants-Respondents.

May 2, 2014

Submitted April 7, 2014 - Decided

Before Judges Parrillo and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6880-10.

Leslie A. Farber, attorney for appellant.

John J. Hoffman, Acting Attorney General, attorney for respondents (Lewis Scheindlin, Assistant Attorney General, of counsel; Jessica M. Anderson, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Ana Garcia appeals from the summary judgment dismissal of her personal injury negligence lawsuit against defendants New Jersey Transit and Armando Rodriguez for failure to meet the Tort Claims Act (N.J.S.A. 59:1-1 to 12-3) threshold for recovery of non-economic damages. N.J.S.A. 59:9-2(d). We affirm.

The facts are undisputed and may be briefly stated. On December 17, 2009, while crossing a street, plaintiff was struck by an oncoming New Jersey Transit bus operated by Rodriguez. She fell to the ground and her head hit the pavement.

As a result of the fall, plaintiff received a scar on her forehead, near the left side of her right eyebrow, that looks like a cross. It is this injury that forms the basis of her claim for recovery of non-economic pain and suffering damages from defendants. The parties agreed that "the horizontal and vertical parts of the scar each measure approximately 1/2 [inch]." At her deposition on November 21, 2011, a photograph was taken of her face and plaintiff said she was "embarrassed" by, and "feel[s] bad" about, the scar. Since then, she has moved to Florida and spent a substantial portion of her time in the sun, which gave her a tan that obscured her scar.1

At the April 27, 2012 hearing on defendant's motion for summary judgment, the judge requested that plaintiff approach within three feet of the bench so he could observe the scar on her forehead close-up. At first, the judge could not identify the facial scar and asked plaintiff's counsel to point it out. After counsel indicated the exact location of the scar, the judge, observing it from three feet away, described it as a "tiny scar." In fact, he "could barely see the scar." Following argument, the motion judge granted summary judgment in favor of defendants, finding that plaintiff failed to satisfy the Tort Claims Act injury threshold. The judge reasoned:

It is an object[ive] standard. Under Gilhool[ey] a number of factors should be considered, including 'appearance, coloration, existence, and size of the scar as well as shape, characteristics of the surrounding skin, remnants of the healing process and any other cosmetically important matters.' And Brooks . . . tells me it must be 'substantial.'

. . . .

But I want the record to be very clear. I was three feet away from the plaintiff. I

. . . looked as hard as I could. I could barely see that scar, honestly. [W]hen I asked the plaintiff's counsel to point the scar out I wasn't doing that just for the record. I . . . truly did not see it.

And when she pointed it out, and she did a very good job, I . . . realized that there was a tiny scar there. But, I can't conceive that that would meet the Gilhool[ey] standard.

This appeal followed.

"We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine "whether there was a genuine issue of material fact, and if not, . . . then [we decide] whether the trial court's ruling on the law was correct." Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007). "Because this appeal arises on defendants' motion for summary judgment, we view the facts in the light most favorable to plaintiff." Soto v. Scaringelli, 189 N.J. 558, 564 (2007) (citing DiProspero v. Penn, 183 N.J. 477, 482 (2005)).

N.J.S.A. 59:9-2(d) sets forth the following limits on recovery of pain and suffering damages against a public entity or public employee:

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.

This limitation "'reflects the policy judgment that in view of the economic burdens presently facing public entities a claimant should not be reimbursed for non-objective types of damages, such as pain and suffering, except in aggravated circumstances[] . . . .'" Gilhooley v. Cnty. of Union, 164 N.J.533, 539 (2000) (quoting Harry A. Margolis and Robert Novack, Claims Against Public Entities, 1972 Task Force Comment on N.J.S.A.59:9-2 (Gann 2000)).

In Gilhooley, supra, the Court held that in order to satisfy the pain and suffering threshold of "the Tort Claims Act, a plaintiff must satisfy a two-pronged standard by proving (1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial." 164 N.J. at 540-41. The Court further elaborated that

[t]o recover under the Act for pain and suffering, a plaintiff must prove by objective medical evidence that the injury is permanent. Temporary injuries, no matter how painful and debilitating, are not recoverable. Further, a plaintiff may not recover under the Tort Claims Act for mere 'subjective feelings or discomfort.' Judicial and secondary authority interpreting the phrase 'permanent loss of bodily function' is scant. One recognized text states '[t]o be considered permanent within the meaning of the subsection, an injury must constitute an 'objective' impairment, such as a fracture.' Absent such an objective abnormality, a claim for permanent injury consisting of 'impairment of plaintiff's health and ability to participate in activities' merely iterates a claim for pain and suffering.

[Id. at 540 (quoting Brooks v. Odom, 150 N.J. 395, 402-03 (1997)).]

When the focus of plaintiff's complaint is a scar, our courts have held that we apply an objective standard and that "'in order to be considered a permanent disfigurement, a scar must impair or injure the beauty, symmetry, or appearance of a person, rendering the bearer unsightly, misshapen or imperfect, deforming her in some manner.'" Soto, supra, 189 N.J. at 573-74 (quoting Gilhooley, supra, 164 N.J. at 544). In applying this standard, "a 'number of factors should be considered, including appearance, coloration, existence and size of the scar, as well as, shape, characteristics of the surrounding skin, remnants of the healing process, and any other cosmetically important matters.'" Id. at 574 (quoting Gilhooley, supra, 164 N.J. at 544). "Additionally, . . . the disfigurement must not only be 'permanent' but 'substantial' as well." Gilhooley, supra, 164 N.J. at 544 (citing Hammer v. Twp. of Livingston, 318 N.J. Super. 298, 308 (App. Div. 1999)).

In Soto, supra, the Court found that neither a metal plate implanted in the plaintiff's left shoulder nor the scarring resulting from the "surgical procedure constituted disfigurement or scarring sufficiently 'significant' to vault [the] verbal threshold." 189 N.J. at 577. Although that case dealt with the verbal threshold under the no-fault automobile statute, the Court determined that there was "no meaningful difference between the standard" applied in those cases and in the Tort Claims Act context to determine whether a scar constitutes "permanent disfigurement." Id. at 574. At the hearing, the plaintiff submitted a certificate from her treating physician who explained "that plaintiff's 'physical exam at this time reveals a 7 cm [or 2 3/4 inch] scar of the left shoulder' and 'a palpable metal object underneath the scar[,]" and that he opined that the plaintiff "'suffered permanent scarring as a result of the accident[.]'" Id. at 565. After observing plaintiff from a distance of three feet, however, the motion court found otherwise and granted summary judgment for defendants, determining that the scar

"was not readily apparent to me, it took some looking before I was able to see the scar' . . . [and] 'unless somebody were looking with great particularity at that shoulder, under a good strong light, that scar is not visible, it doesn't have any keloid features to it at all, it is very thin, it's a little lighter than the surrounding skin[.]'"

[Id. at 576-77.]

We reversed the trial court's determination. Id. at 577.

The Supreme Court then reversed, holding that summary judgment was appropriate because

no rational fact-finder could find that plaintiff's scar or surgically implanted plate and screw rendered plaintiff's appearance unattractive, objectionable, or as the subject of pity or scorn, or that they, individually or collectively, substantively detract from plaintiff's appearance or impair or injure plaintiff's beauty, symmetry, or appearance so as to render her unsightly, misshapen, or imperfect.

[Id. at 578.]

Here, the record demonstrates that plaintiff's facial scar was not "substantial" and its appearance was almost unnoticeable at the time of oral argument. Similar to Soto, the motion court viewed plaintiff from a distance of about three feet, applied an objective standard using the factors established in Gilhooley, supra, 164 N.J. at 544, and determined that plaintiff's scar was "barely" noticeable. Notably, the judge was unable to identify plaintiff's scar without the assistance of her counsel and when located, described it as a "tiny scar." Clearly then, the injury did not constitute "significant scarring, that materially affects her appearance, in some way." Soto, supra, 189 N.J. at 577.

Nevertheless, plaintiff contends the tan she received living in Florida obscured and diminished the scar at the time of oral argument. We fail to see how that argument advances plaintiff's claim. The fact that a tan or perhaps makeup masks the scar is further evidence that the facial condition is not an objectively significant disfigurement for purposes of the Tort Claims Act, and does not render plaintiff "unsightly, misshapen, or imperfect." Id. at 576 (internal quotation marks omitted). In any event, the motion judge viewed the photograph of plaintiff's face taken at deposition before her time in Florida and therefore was able to base his decision on a comparison of that photograph with her physical appearance five months later and at a distance of three feet.

Finally, although plaintiff contends that she is embarrassed by her scar, she cannot sustain a claim to recover pain and suffering damages under the Tort Claims Act merely based on her "'subjective feelings or discomfort.'" Gilhooley, supra, 164 N.J. at 540 (quoting Brooks, supra, 150 N.J. at 403). In Hammer, supra, we held that "[a]bsent objective medical evidence, plaintiff cannot recover pain-and-suffering damages for her [injury]." 318 N.J. Super. at 306; see also Brooks, supra, 150 N.J. at 403-04. Here, plaintiff provided no medical evidence that her scar resulted in "permanent loss of a bodily function that is substantial." Ibid. Instead, the only objective proof plaintiff provided in this matter was a photograph taken of her at her deposition. However, the photograph itself only depicts a tiny scar to the left of her right eyebrow.

We are therefore satisfied that plaintiff has failed to demonstrate (1) objective evidence of a qualifying injury that is permanent, and (2) a permanent loss of a bodily function proximately caused by the incident that is substantial. Simply stated, plaintiff's facial scar, not readily apparent and very small in size and shape, does not constitute a qualifying injury for non-economic damages under the Tort Claims Act.

Affirmed.

1 Plaintiff did not contend at oral argument on the summary judgment motion that the appearance of her scar was diminished because she moved to Florida and received a tan after the deposition. This issue was first raised in her motion to supplement the record of October 25, 2012, which was later denied.