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City of Bethel v. Peters9/3/2004
ent before submitting the issue to the jury. The court should withhold the issue from the jury if no reasonable juror could find that the plaintiff suffered from severe disfigurement; otherwise the question should go to the jury. We review this determination for abuse of discretion, reversing the superior court only when we are "left with the definite and firm conviction, after reviewing the whole record, that erred in its ruling." The deferential standard of review and the substantive standard combine to give the City a difficult task in convincing us that the superior court abused its discretion. We will reverse the court's decision to send the question of severe disfigurement to the jury only if we possess a definite and firm conviction that no reasonable juror could think that Peters's injury was a severe disfigurement.
The first question we must answer is whether evidence concerning the state of Peters's leg before it was fully healed may play a role in this determination. Peters calls our attention to photographs taken during her recuperation, which lasted several months and involved at least four trips to the Alaska Native Medical Center in Anchorage. The photos show her leg with an array of pins and rods attached. The statute requires "severe permanent physical impairment or severe disfigurement" to break the damage cap; the presence of the word "permanent" in the impairment clause and its absence in the disfigurement clause of the same statute imply that a severe disfigurement need not be permanent to support damages beyond the cap. However, a reasonable healing period must be allowed before disfigurement may be assessed. Otherwise, a plaintiff might, for example, claim to be disfigured based on his condition immediately after being injured when a wound that will eventually heal completely still appears grisly. Evidence of the plaintiff's injury before this healing period has passed is admissible to the extent that it provides information or inferences about its ultimate condition. It is unclear how the superior court used the various photographs in evidence, but in reviewing its threshold determination, we will only consider evidence of the long-term state of Peters's leg.
The photographs taken after Peters's recovery show her leg bent in a drastic angle at the knee, which itself is marred by significant scarring. Testimony from Peters and her daughter demonstrate that the bend in her leg is constant, if not permanent. Conceding that Peters suffers a disfigurement, the City essentially asserts that it is not severe enough to warrant submitting the question to the jury. The statute does not define "severe disfigurement," and no Alaska cases have dealt with the issue. A disfigurement is " hat which impairs or injures the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect." Although Peters notes that her walk is significantly slowed by the injury, that her confidence is shaken, and that she can no longer take part in activities like berry picking or boating, disfigurement concerns the outward appearance of a person's body, not its function. We thus consider only the fact that Peters's leg is bent and scarred, not the injury's effect on her ability to walk or take part in other activities. Because the definition of disfigurement depends on judgments of a plaintiff's appearance or unsightliness, it must be determined by an objective test gauging the views of the reasonable person. If a reasonable person would see the injury as detracting from the plaintiff's appearance, the injury has caused disfigurement. Disfigurement is severe if a reasonable person would find that the injury mars the plaintiff's physical appearance and causes a degree
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