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Puso v. Kenyon3/10/1994
as being "unattractive, objectionable, or the subject of pity or scorn." Agudelo v. Pan American World Airways, Inc., supra, 460 N.Y.S.2d at 419. However, as noted in Oswin, supra, 129 N.J. at 319-320, the test is "objective proof of . . . injury and consequent disability"; it is not a subjective standard. The court in Falcone v. Branker, supra, 135 N.J. Super. at 152, analyzed this particular issue and concluded, "From an objective, empirical standpoint, the appearance, coloration, existence and size of the plaintiff's scars are undisputed matters of fact." These factors, along with shape, characteristics of surrounding skin, the remnants of the healing process, and the factors which may be developed as being cosmetically important on a case-by-case basis, are all objective factors which may be utilized by the court in considering whether the scar is significant in a summary judgment motion in a verbal threshold case. Presumably many scars will not require judicial analysis, e.g. hypothetically a five inch scar on the face of a twenty-one year old professional model or, as in Falcone v. Branker, id., a one and one-half inch scar below the kneecap of a sixty-six year old physician. Those scars which are subject to judicial analysis on a tort threshold motion must be scrutinized objectively by the court.
In Falcone, Judge Walsh properly articulated a requirement that a plaintiff intending to resist a motion for summary judgment as to a scar injury must appear in court on the return day of the motion. Obviously a personal appearance before the court, either in open court or in camera, will be the optimum. That requirement in particular cases should be relaxed to accommodate geographical, financial or other medical considerations which render an in-court appearance impractical or otherwise prohibitive. In lieu of a personal appearance, professional-quality photographs authenticated as to date or a professional-quality videotape may be sufficiently reliable for submission to the court. The court's observations, which should in every case be articulated, as in Falcone, id. at 148, will serve as the predicate for a determination whether the scar is objectively significantly disfiguring so as to defeat defendant's motion for summary judgment. As with the type six, seven or eight injury, the favorable tort threshold determination will not relieve a plaintiff of the obligation to prove at trial, to the trier of the fact, that the scar is a "significant disfigurement." Oswin v. Shaw, supra, 129 N.J. at 313-14; Foti v. Johnson, supra, 269 N.J. Super. at .
In this case, the trial court concluded that the plaintiff's scar did not meet the tort threshold. However, the record on appeal does not reflect whether the motion Judge actually saw the scar on the return day of the motion, nor does it reflect whether authenticated recent photographs of the scar were submitted to the Judge for evaluation. Although the Judge did cite Oswin v. Shaw, supra, the court did not refer to Falcone v. Branker, supra, nor Agudelo v. Pan American World Airways, Inc., supra. The absence of a sufficient record prevents appropriate appellate review and accordingly, the order of summary judgment must be reversed and the motion must be reargued on remand.
At oral argument a question was posed as to the applicability of the concept of partial summary judgment on tort threshold issues where some injuries meet the tort threshold and other injuries, if evaluated separately, do not meet the tort threshold.
Plaintiff's counsel urges that we adopt the holding of Prieston v. Massaro, 107 A.D.2d 742, 484 N.Y.S.2d 104 (App. Div. 2 Dept. 1985), and Katzman v. D
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