The New York Legal News Round Up
Define That Term #275

The NY Court of Appeals Considers the Issue of Grave Injury Yet Again

Gavel2 On Thursday, the New York Court of Appeals handed down Fleming v Graham, 2008 NY Slip Op 02502.  At issue was whether the plaintiff suffered from a "permanent and severe facial disfigurement" thus constituting a "grave injury" under Workers Compensation law s. 11. 

In reaching its decision, the Court noted that the legislative intent behind the enactment of WCL s. 11 was "to protect employers by limiting third-party actions against them 'except in extremely limited, defined circumstances.'"

The Court then turned to the task of determining whether a facial injury is a "permanant and severe...disfigurement" and concluded that:

While no conceivable standard can capture in toto the highly limited class of "severe" facial disfigurements contemplated by section 11, we nonetheless conclude that an injury disfigures the face when it detrimentally alters the plaintiff's natural beauty, symmetry or appearance, or otherwise deforms. A disfigurement is severe if a reasonable person viewing the plaintiff's face in its altered state would regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly. In finding that a disfigurement is severe, plaintiff's injury must greatly alter the appearance of the face from its appearance before the accident. The foregoing standard, ordinarily one for the court as a matter of law, removes the inquiry from plaintiff's subjective self-assessment and most closely approximates what the Legislature contemplated.

Applying that standard, the Court held that the plaintiff's injuries did not rise to that level in this case:

The photographs in the record show numerous scars. However, they demonstrate a steady progression from the initial injuries to scarring, to significant recovery...While in some cases that question is one properly for the jury, we determine that, on the facts of this case, Fleming's injuries do not rise to the level of a "severe" disfigurement. Although there are cases where a reasonable person might view multiple scarring as satisfying the standard we articulate here, this is not one of them.

Likely a frustrating decision for the third-party plaintiff (thanks to Louis Schepp's comment for pointing out the error in my original post) in this case since his case appears to be an exception to the general rule that the issue of grave injury is one for the jury.  Also frustrating is that it's a decision purporting to offer guidance that, in my opinion, offers very little and gives trial courts great leeway in deciding summary judgment motions on this "issue of fact" that can sometimes, apparently, be an issue of law, should a court be so inclined to interpret it as such. 


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Louis Schepp

You write: "[l]ikely a frustrating decision for the plaintiff in this case." Don't you mean "for the third-party plaintiff?" The plaintiff will get 100% of his damages, if he proves the defendant liable, but the defendant will have to pay 100% of the damages, when they might be just 1% responsible for the accident that caused plaintiff's injuries.

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