Maison v. NJ Transit Corp.

Decision Date17 July 2019
Docket NumberDOCKET NO. A-3737-17T2
Parties Anasia MAISON, Plaintiff-Respondent, v. NJ TRANSIT CORPORATION and Kelvin Coats, Defendants-Appellants.
CourtNew Jersey Superior Court — Appellate Division

Robert J. McGuire, Deputy Attorney General, argued the cause for appellants (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Robert J. McGuire, on the briefs).

Kingsuk Bhattacharya argued the cause for respondent (Bendit Weinstock, PA, attorneys; Kingsuk Bhattacharya and Sherri Davis Fowler, West Orange, on the briefs).

David M. Schmid, Lawrenceville, argued the cause for amicus curiae New Jersey Association for Justice (Stark & Stark PC, attorneys; David M. Schmid, Lawrenceville, and Evan J. Lide, West Orange, of counsel and on the brief).

Before Judges Fisher, Hoffman and Geiger.

The opinion of the court was delivered by

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 NJ 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 NJ 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 NJ 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 plaintiff $1.8 million in damages. After the trial court denied defendants' post-trial motions, they filed this appeal.

On appeal, defendants raise five arguments, asserting the trial court erred by: (A) allowing plaintiff to proceed to trial without supporting expert testimony regarding defendants' duty of care; (B) holding the common carrier standard applicable to NJ Transit buses and drivers; (C) failing to grant judgment for defendants on the issue of proximate cause; (D) rejecting defendants' claim that TCA immunities applied; and (E) rejecting defendants' request to include the bottle thrower on the verdict sheet. We address these arguments in turn.

II.
A. Expert Testimony

Defendants argue the trial court erred when it denied their motion to dismiss plaintiff's claims for failing to provide "any expert report or testimony regarding the standard of care owed by defendants." A plaintiff need not always present expert testimony to assess whether a particular defendant acted negligently.

Jacobs v. Jersey Cent. Power & Light Co., 452 N.J. Super. 494, 505, 176 A.3d 827 (App. Div. 2017). The necessity of expert testimony is determined by the sound exercise of discretion by the trial judge. State v. Summers, 350 N.J. Super. 353, 364, 795 A.2d 308 (App. Div. 2002), aff'd, 176 N.J. 306, 823 A.2d 15 (2003). We examine the decision for abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382, 997 A.2d 954 (2010) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 12, 942 A.2d 769 (2008) ).

Expert testimony is not required when the jury can understand the concepts in a case "utilizing common judgment and experience." Campbell v. Hastings, 348 N.J. Super. 264, 270, 791 A.2d 1081 (App. Div. 2002). See also Mayer v. Once Upon A Rose, Inc., 429 N.J. Super. 365, 376-77, 58 A.3d 1221 (App. Div. 2013) (holding that a liability expert on glass was not needed to opine about glass shattering if held too tightly).

Expert testimony is required only when "the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable." Butler v. Acme Mkts., Inc., 89 N.J. 270, 283, 445 A.2d 1141 (1982).

Butler considered whether a defendant grocery store breached a duty to protect patrons from criminal acts of third parties. Although the plaintiff did not present an expert, the Court did not find the omission dispositive, noting "there is no general rule or policy requiring expert testimony as to the standard of care." Id. at 275, 283, 445 A.2d 1141. Although the Court noted expert opinion could have aided the jury, "its absence [was] not fatal." Id. at 283, 445 A.2d 1141.

Conversely, we required a liability expert in Ford Motor Credit Co. v. Mendola, 427 N.J. Super. 226, 239, 48 A.3d 366 (App. Div. 2012). There, a lessee took her car to a shop for inspection and repair, yet the car's engine seized less than two weeks after it was returned to the lessee. Id. at 233-34, 48 A.3d 366. The parties disputed the cause of the engine seizure. Ibid. We concluded expert testimony was required because an automobile is a "complex instrumentality," that has "increased in mechanical and electronic complexity," diminishing the general public's familiarity with its functioning. Id. at 236-37, 239, 48 A.3d 366.

This case does not involve a complex instrumentality such as a car. Rather, it closely resembles the factual circumstances presented in Butler. We conclude the matter presented was not so esoteric that jurors of common judgment and experience could not form a valid judgment as to whether defendants' conduct failed to satisfy the degree of care owed to plaintiff. Jurors without any advanced knowledge could have determined that Coats should have done something, rather than nothing. Thus, in light of the deference we grant the trial judge's determination, we find no error.

B. The Common Carrier Standard

Defendants further argue NJ Transit should...

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