New York State Court of Claims

New York State Court of Claims

ALLPORT v. THE STATE OF NEW YORK, #2007-013-509, Claim No. 108329


Synopsis



Case Information

UID:
2007-013-509
Claimant(s):
KYLE ALLPORT
Claimant short name:
ALLPORT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108329
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant’s attorney:
O’BRIEN BOYD, P.C.BY: CHRISTOPHER J. O’BRIEN, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 30, 2007
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim arose on March 29, 2002 in the Village of Albion, New York, when Claimant Kyle Allport was a passenger in a motor vehicle which was struck by a van owned and operated on behalf of the New York State Department of Correctional Services (DOCS). It is undisputed that the DOCS vehicle negligently failed to yield the right-of-way to the vehicle in which Claimant was a passenger in the rear seat behind the driver. That being said, there is no dispute that there was negligence on the part of the Defendant. Liability, however, is dependent upon a determination of whether the Defendant’s negligence caused a serious injury as defined by article 51 of the Insurance Law. Claimant sustained lacerations and scarring on his forehead, and the essence of the trial of this claim is my determination whether such injuries are serious, and, if so, an assessment of damages proximately caused by the State’s negligence.


At the time of the accident, Claimant was a junior at Albion High School and was returning to his home. He was bleeding upon removal from the vehicle and was lying down, initially applying a t-shirt to the lacerations on his forehead. An ambulance arrived and transported him to Medina Memorial Hospital. He sustained a laceration about one inch above his left eyebrow, and when the bleeding would not stop, the only physician surgeon on staff, Dr. Eric Johnson, sutured the wounds, which he measured at approximately 12 centimeters long, slightly more than 4½ inches (Exhibit 1, p. 73). Claimant described feeling in a lot of pain, with a loss of sensation to the area in the eyebrow; he lost no time from school or from his work. He described the injury site as always tender, with sensation having returned somewhat, but the site still tingles. He also described having had headaches for a short while after the accident, but that complaint is unrelated to the sole consideration before me, to wit, whether the scarring on Claimant’s forehead reaches the statutory threshold. He had previously played junior varsity football, and was intending to try out again, but putting the football helmet on was painful and uncomfortable because of the tight fit, putting pressure on his forehead with a helmet pad that directly contacted the scarred area. It was a personal decision, rather than a medical imperative, not to try out.

Claimant testified that people stare at his scar, which makes him feel very uncomfortable, becoming what he perceives as the center of attention, when he doesn’t want to be. He was more aware of this discomfort as the scar was more noticeable during the balance of his junior year in high school, and continuing into his senior year. People still look at his scar. He noted that after initial eye contact, their attention is often drawn to his scar. He described it as a weird feeling, not prejudice, but distracting. He cannot hide the scar with a baseball-type cap because it is too low on his forehead.

Claimant had some 37 stitches which remained in place for two weeks or so after the injury. He never saw a plastic surgeon, nor was it ever recommended. I viewed the scar and palpated the scarred area (see photographic Exhibits A-F, taken in February 2003), feeling the lump underneath (the same area that was contacted when Claimant put his football helmet on). He described at trial that it irritates the whole forehead, the side of his face tingles, and he still doesn’t have 100% of the feeling because, as his doctor advised, you cannot fix nerves.

The main scar on the forehead is about 1 to 1½ inches in length, from the midline of his left eyebrow directly over toward the left. Claimant also described a scar along the eyebrow, that was essentially indiscernible upon examination, and in any event is not the scar which Claimant contends is a serious disfigurement. Claimant testified that its appearance becomes more distinctive when he spends time in the sun, with a greater differentiation from tanning, as the scar will not tan because it has no pigment, making it stand out more.

The only ground upon which serious injury is premised is whether the scarring is a significant disfigurement, and thus a serious injury as defined by §5102(d) of the Insurance Law. To the extent that Defendant addresses the issue of whether Claimant was prevented from performing substantially all of the material acts which constituted his usual and customary activities for at least 90 days of the first 180 days immediately following the injury, Claimant does not rely upon such a theory, and even if he did, the proof does not permit such a finding.

Whether the scar is a significant disfigurement, and whether it impacts this Claimant in a manner which calls for a damage award are questions of fact, which turn in part on the nature of the scar and the credibility of the Claimant in describing the impact of the disfigurement (see Paolini v Sienkiewicz, 278 AD2d 858).

Claimant has supplied case law where a scar that was three centimeters long and five millimeters wide constituted a significant disfigurement (Paolini, id.). In Zulawski v Zulawski (170 AD2d 979), the Fourth Department reversed a jury’s finding and held that a forehead laceration requiring 20 stitches that left a 2 to 2½-inch scar did constitute a significant disfigurement. I might note here that while Dr. Johnson measured the length of the wound at approximately 12 centimeters, and Claimant advised that there were 37 sutures, the scar that I observed measured about 1 to 1½ inches in length, between say 2.54 and 3.81 centimeters.

Regardless, there are no statutory standards setting forth some minimally qualifying size, length or width which govern this finding, and quite frankly it requires a subjective evaluation by the finder of fact. In Waldron v Wild (96 AD2d 190), albeit reversing a trial court which dismissed by summary judgment a claim based upon the issue of significant disfigurement, the Fourth Department reviewed the factors that the finders of fact should consider, and held that “ ‘[a] disfigurement is significant if a reasonable person viewing the plaintiff’s body in its altered state would regard the condition as unattractive, objectionable, or as the subject of pity or scorn.’ (PJI 2:88B [Sept., 1982 Supp].)” (Waldron v Wild, 96 AD2d at 194.)

While Claimant does have a visible scar on his forehead, and while it surely is noticeable to him and to others, I find that it is not a significant disfigurement as required by Insurance Law §5102(d), and as interpreted by appellate courts. Regardless of whether I personally agree with the statutory standards, I am compelled to apply them objectively to the claim at bar. Accordingly, the claim must be, and hereby is, dismissed.

All motions not heretofore ruled upon are now denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.


July 30, 2007
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims