April 2, 2019
appeal from the Superior Court of New Jersey, Law Division,
Essex County, Docket No. L-3535-14.
J. Mc Guire, Deputy Attorney General, argued the cause for
appellants (Gurbir S. Grewal, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General, of counsel;
Robert J. Mc Guire, on the briefs).
Kingsuk Bhattacharya argued the cause for respondent (Bendit
Weinstock, PA, attorneys; Kingsuk
Bhattacharya and Sherri Davis Fowler, on the briefs).
M. Schmid argued the cause for amicus curiae New Jersey
Association for Justice (Stark & Stark PC, attorneys;
David M. Schmid and Evan J. Lide, of counsel and on the
Judges Fisher, Hoffman and Geiger.
Anasia Maison filed this action against defendants, New
Jersey Transit (NJ Transit) and one of its bus drivers,
seeking damages for the injuries she sustained when an
unidentified bus passenger struck plaintiff in the head with
a thrown glass bottle. At the conclusion of a two-day trial,
a jury returned a verdict in favor of plaintiff and awarded
her $1.8 million in damages. After the trial court denied
defendants' motion for judgment notwithstanding the
verdict, new trial, or remittitur, they filed this appeal. We
affirm in part and vacate and remand in part.
derive the following facts from the record. On July 22, 2013,
plaintiff boarded a N.J. Transit bus in Newark around 1:15
a.m. According to plaintiff, she sat near the back of the bus
and a group of male teenagers sat behind her. The group began
making profane comments to plaintiff and one of them threw an
object at her. Plaintiff defended herself by speaking back to
the teenagers. When a second object was thrown at her, and
one of the teenagers brandished a knife, plaintiff changed
encounter continued for approximately seven to eight minutes.
The bus driver, defendant Kelvin Coats, witnessed the entire
incident, and described plaintiff as
handling herself very well . . . . She wasn't afraid. She
didn't back down. She stood up for herself . . . . And
then it just died down. So I didn't feel as though there
was a need for me to go back and intervene because she shut
also stated that if plaintiff had asked for help, he
"would have reacted, stopped the bus. I would have
intervened." Further, if he had noticed one of the men
brandish a knife, he would have "call[ed] the police
immediately." He had called them before, but had never
seen a physical altercation on his bus, and did not expect
one would happen that night. Aside from calling the police,
Coats acknowledged he could have asked the unruly passengers
to leave, or called N.J. Transit's driver hotline (NJT
Hotline), or stopped the bus.
teenagers exited the bus at their stop, one of them turned
and threw a liquor bottle at plaintiff, striking her in the
forehead. Coats "heard the glass break" and heard
plaintiff scream. He went back to plaintiff's seat and
observed plaintiff bleeding profusely, and saw the broken
bottle on the floor. An ambulance transported plaintiff to
the hospital, where she required twenty-two stitches to close
plaintiff filed suit in 2014, defendants successfully moved
for dismissal, arguing plaintiff's claims, as set forth
in her complaint, were barred by the Tort Claims Act (TCA),
N.J.S.A. 59:1-1 to 12-3, specifically, under the police
protection immunity provided by N.J.S.A. 59:5-4. Plaintiff
then filed an amended complaint, alleging N.J. Transit is a
common carrier, and enumerating various actions that Coats
could have taken to fulfill defendants' duty to keep
passengers on the bus safe from harm. The amended complaint
omitted any claim that defendants failed to provide physical
security, in obvious recognition that the police protection
immunity barred such a claim. Plaintiff's amended
complaint alleged that "other passengers on the same bus
. . . became increasingly and significantly unruly with
plaintiff for a significant amount of time and . . . then
caused significant and permanent injuries by throwing a glass
object at her face." Plaintiff's amended complaint
did not assert any claim against the unidentified teenager
who threw the bottle at plaintiff or the other individuals in
While defendants did not include the bottle thrower or any of
the "unruly" passengers as John Doe third-party
defendants, defendants' answer did include the following
separate defenses, relevant to this appeal:
SEVENTH AFFIRMATIVE DEFENSE
The Complaint and the proceedings resulting therefrom and any
recovery resulting therefrom is barred, limited and/or
controlled by all provisions of the [TCA], inclusive, as if
each section, provision, defense, and immunity were listed
herein separately, particularly, and at length.
. . . .
FIFTEENTH AFFIRMATIVE DEFENSE
The injuries were due to the acts or omissions of third
persons over whom this defendant had no control.
trial began, defendants sought the following determinations
from the trial court: (1) a finding that defendants did not
owe the duties of a "common carrier"; (2) the
dismissal of plaintiff's case based on the absence of
supporting expert testimony; and (3) a ruling that the
bottle-throwing tortfeasor would appear on the verdict sheet.
The trial court denied each application.
conclusion of the evidence, defendants moved for a directed
verdict, citing TCA immunity provisions based on failure to
provide police protection, N.J.S.A. 59:5-4, and good faith
execution of the law, N.J.S.A. 59:3-3. The trial court denied
the motion and submitted the matter to the jury. After
finding that defendants "fail[ed] to exercise a high
degree of care in protecting plaintiff," and that
"this failure proximately cause[d] plaintiff's
injuries," the jury awarded ...