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Maison v. N.J. Transit Corp.

Superior Court of New Jersey, Appellate Division

July 17, 2019

ANASIA MAISON, Plaintiff-Respondent,
v.
NJ TRANSIT CORPORATION and KELVIN COATS, Defendants-Appellants.

          Argued April 2, 2019

          On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3535-14.

          Robert 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).

          David 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 brief).

          Before Judges Fisher, Hoffman and Geiger.

          OPINION

          HOFFMAN, J.A.D.

         Plaintiff 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.

         I.

         We 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 seats.

         The 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 them up.

         Coats 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.

         As the 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 her wound.

         After 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 his group.

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.

         Before 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.

         At the 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 ...


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