Maison v. New Jersey Transit Corp., 021721 NJSC, A-34-19

Docket NºA-34-19, A-35-19
Opinion JudgeALBIN, JUSTICE
Party NameAnasia Maison, Plaintiff-Respondent/Cross-Appellant, v. New Jersey Transit Corporation and Kelvin Coats, Defendants-Appellants/Cross-Respondents.
AttorneyDaniel M. Vannella, Assistant Attorney General, argued the cause for appellants/cross-respondents (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel, and Daniel M. Vannella, on the briefs). K. Raja Bhattacharya argued the cause for respondent/c...
Judge PanelCHIEF JUSTICE RABNER and JUSTICES SOLOMON and PIERRE-LOUIS join in JUSTICE ALBIN's opinion. JUSTICE PATTERSON filed a separate opinion concurring in part and dissenting in part, in which JUSTICES LaVECCHIA and FERNANDEZ-VINA join. JUSTICE PATTERSON, concurring in part and dissenting in part.
Case DateFebruary 17, 2021
CourtSupreme Court of New Jersey

Anasia Maison, Plaintiff-Respondent/Cross-Appellant,

v.

New Jersey Transit Corporation and Kelvin Coats, Defendants-Appellants/Cross-Respondents.

Nos. A-34-19, A-35-19

Supreme Court of New Jersey

February 17, 2021

Argued Decided September 29, 2020

On certification to the Superior Court, Appellate Division, whose opinion is reported at 460 N.J.Super. 222 (App. Div. 2019).

Daniel M. Vannella, Assistant Attorney General, argued the cause for appellants/cross-respondents (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel, and Daniel M. Vannella, on the briefs).

K. Raja Bhattacharya argued the cause for respondent/cross-appellant (Bendit Weinstock, attorneys; K. Raja Bhattacharya and Sherri Davis Fowler, on the briefs).

Edward J. Fanning, Jr., argued the cause for amici curiae New Jersey Business & Industry Association, Commerce and Industry Association of New Jersey, and New Jersey Chamber of Commerce (McCarter & English, attorneys; Edward J. Fanning, Jr., and David R. Kott, of counsel and on the brief, and Benjamin D. Heller, on the brief).

OPINION

ALBIN, JUSTICE

Every day, throughout this state, thousands of people take buses and trains to commute to work, visit family and friends, and travel to vacation spots. Those modes of transportation are known as common carriers. Passengers pay fares to common carriers to safely transport them to their destinations. Under the common law, privately owned carriers owe their passengers a heightened duty of care to act with the utmost caution to protect them, even from the wrongful acts of co-passengers -- a duty to act as would a very careful and prudent person in light of the circumstances.

Today, public corporations like defendant New Jersey Transit Corporation (NJ Transit) are largely responsible for providing mass public transportation. N.J. Transit is a common carrier to whom passengers entrust their lives and safety every day, including during their commutes to and from work. The preeminent issue before us is whether, under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to:12-3, the heightened duty-of-care standard governing private common carriers protects equally those people who ride on public common carriers such as N.J. Transit.

In this case, plaintiff Anasia Maison on her commute home from work took an N.J. Transit bus. During the ride, a group of four to five teenagers verbally and physically harassed her as the bus driver silently watched and drove on. Despite the escalating threats and unruly behavior toward Maison, the bus driver did nothing -- did not call out the teenagers, stop the bus, or contact N.J. Transit or the police. As one of the teenagers disembarked, he threw a bottle striking Maison in the forehead, causing a permanent and serious injury.

Maison filed a negligence action against defendants N.J. Transit and the bus driver alleging that they breached their duty to protect her from the foreseeable dangers presented by the violent conduct of the teenage passengers.

The trial court determined that, as a matter of law, the common-carrier standard of care applied to defendants; TCA immunities did not shield defendants from liability; and comparative fault could not be allocated to the unidentified bottle thrower. The jury returned a liability verdict against defendants and awarded Maison $1, 800, 000.

Although the Appellate Division agreed with the trial court that the common-carrier standard of care applied to defendants and no provision of the TCA immunized defendants from liability, it nevertheless found that the trial court erred in not submitting to the jury the decision whether to allocate fault between the intentional tortfeasor -- the bottle thrower -- and N.J. Transit and its bus driver. It did not disturb the damages award and remanded for a new trial at which a jury would determine what percentage of fault, if any, should be allocated to the bottle thrower.

We affirm and modify the judgment of the Appellate Division. We hold that N.J. Transit and its bus drivers are held to the same negligence standard under the TCA as other common carriers -- to exercise the utmost caution to protect their passengers as would a very careful and prudent person under similar circumstances. See N.J.S.A. 59:2-2(a), :3-1(a). We also hold that defendants are not shielded from liability by the TCA immunities of failure to provide police protection, N.J.S.A. 59:5-4; failure to enforce a law, N.J.S.A. 59:2-4, :3-5; and good-faith enforcement of a law, N.J.S.A. 59:3-3. None of those immunities abrogated defendants' common-carrier duty to protect Maison from the dangerous and threatening conduct of the teenage passengers. Last, we part from the Appellate Division's conclusion that the jury may decide that, because defendants' duty of care to their passengers encompasses their duty to protect Maison from the wrongful conduct of other passengers, no allocation of fault is necessarily required. The TCA leaves no doubt that an allocation of fault between a negligent public entity and its employee and an intentional tortfeasor is mandated. See N.J.S.A. 59:9-3.1. Nevertheless, to ensure that defendants' duty to protect their passenger is not unfairly diluted or diminished, the trial court must give the jury clear guidance on the factors to consider in allocating degrees of fault. See Frugis v. Bracigliano, 177 N.J. 250, 274-75, 281-83 (2003).

Accordingly, we remand for a new trial on allocation of fault consistent with this opinion.

I.

A.

Anasia Maison filed an amended complaint in the Law Division, alleging that N.J. Transit and its bus driver Kelvin Coats breached their common-carrier duty to protect her from the wrongful acts of co-passengers and that, as a result of their negligence, she sustained severe and permanent injuries.1 Only three witnesses testified at trial -- Maison, Maison's mother, and Coats. Their trial testimony presented the critical facts at issue in this case.

On July 21, 2013, Maison, a twenty-year-old college student, was working at a New York City pharmacy until her shift ended at 12:00 a.m. on July 22. On her way back home to Newark, she first took an N.J. Transit train to Penn Station in Newark, arriving there at around 1:00 a.m. At Broad and Market Streets, she boarded an N.J. Transit bus operated by defendant Coats. She paid her fare and took a seat towards the rear of the bus. Two rows behind her were four to five male teenagers.

Maison testified that as soon as the bus pulled away, she was struck on the side of her face by an unknown object "thrown very hard" by one of the teenagers. She turned to them and asked, "why are [you] bothering me?" One of the young men said to his friends that Maison "should 'f' one of them up." A few seconds later, another object was thrown at her, but it hit only the chair. She turned again and asked the young men to stop harassing her. They told her "to shut the f**k up" and loudly hurled insults at her. In response, Maison admittedly used foul language, but the stream of profanities from the young men continued. Maison could see the bus driver, Coats, watching the commotion in his rearview mirror, but Coats kept driving.

When one of the teenagers brandished a knife, Maison said "out loud," "I need help." Although she could not tell whether Coats heard her, she saw that he was peering at her through his rearview mirror. Frightened, Maison got up and moved toward the front of the bus, but when a passenger told her, "[you] better not come up here," she returned to her seat where the insults continued to rain down on her. She tried to make a call from her cell phone, but the signal failed -- and the attempted call caught the attention of the youths. A minute or two later, one of the teenagers rang the bell for the bus to stop. As they were leaving through the rear side door of the bus, Maison heard a passenger tell one of them, "don't do it" -- and then, all of a sudden, a bottle struck her in the face. As she bled from the forehead, the youths continued to taunt and threaten her through the open door of the bus.

Maison called out for help, yelling: "I need ambulance. I need police." Coats remained in his seat. A passenger gave her a cell phone, which she used to call the police and an ambulance. After the ambulance arrived, Maison was transported to Beth Israel Hospital, where she received twenty-two stiches to treat the wound to her forehead -- the site now of a permanent scar that has left her self-conscious about her appearance. In the aftermath of the attack, she suffered from very bad headaches and delayed her college graduation.

In his testimony, Coats recalled that Maison boarded the bus at about 1:14 a.m. and, immediately afterwards, four to five young men entered and took seats behind her. As he drove, he observed through his rearview mirror the young men and Maison "cursing back and forth" -- "a lot of b's and f's."2 A passenger interceded and said to the young men, words to the effect of, "don't disrespect her, don't call her the b word." According to Coats, Maison "was handling herself very well." He monitored the situation and knew that there was a threat to Maison. He acknowledged that his job was to get his passengers "from point A to B safely" but also stated in his deposition testimony read to the jury that "it's not my job to get involved. First of all, my safety comes first."

Seven to eight minutes into the drive from Broad and Market Streets, where the verbal conflict began, someone pressed the bell for the Hayes Circle stop. Arriving there, Coats opened the front and rear doors, and then he heard "a smack," "glass breaking," and "Maison screaming." He looked back and saw that Maison had been hit...

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