Sunbather’s Personal Injury Claim Barred Under the New Jersey Tort Claims Act

By Jessica M. Anderson, Esq.

In order to be considered a permanent disfigurement under N.J.S.A. 59:9-2(d), 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.  Further, in the application of that standard, the New Jersey Supreme Court has explained that 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.”  This is an objective standard, meaning that the scar must be “objectively significantly disfiguring.”  In addition, a disfigurement must be “substantial” to satisfy the verbal threshold requirement under N.J.S.A. 59:9-2(d).

In the recent unpublished Appellate decision Ana Garcia v. New Jersey Transit, 2014 N.J. Super. Unpub. LEXIS 1004 (App. Div., May 2, 2014) an oncoming New Jersey Transit bus struck Plaintiff while she was crossing the street, causing her to hit her head on the pavement.  Upon impact, Plaintiff’s eyeglasses broke and cut into her face.  As a result, Plaintiff received a scar on her forehead, near the left side of her right eyebrow that looked like a cross.  Plaintiff testified at her deposition that she was “embarrassed” by the scar.  After the accident, Plaintiff moved to Florida and spent a substantial portion of her time in the sun, which gave her a tan that obscured her scar.

Following oral argument, the motion judge granted summary judgment, finding that Plaintiff failed to satisfy the Tort Claims Act injury threshold.  On appeal the Appellate Division affirmed, holding that the injury did not constitute “significant scarring, that materially affects her appearance, in some way.”  The Appellate Division was satisfied that Plaintiff failed to demonstrate objective evidence of a qualifying injury that is permanent and substantial loss of a bodily function.

This holding is particularly interesting because the Appellate Division based their decision largely on the fact that Plaintiff’s tan diminished the appearance of her scar.  The Appellate Division found that this was evidence that the facial condition is not an objectively significant disfigurement for purposes of the Tort Claims Act. Also, the motion judge viewed the photograph of Plaintiff’s face taken at deposition before her time in Florida and based his decision on a comparison of that photograph with Plaintiff’s physical appearance five months later and at a distance of three feet.