ANASIA MAISON VS. NJ TRANSIT CORP. (L-3535-14, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3737-17T2
ANASIA MAISON,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. July 17, 2019
APPELLATE DIVISION
NJ TRANSIT CORPORATION
and KELVIN COATS,
Defendants-Appellants.
_____________________________
Argued April 2, 2019 – Decided July 17, 2019
Before Judges Fisher, Hoffman and Geiger.
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).
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.
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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.
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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
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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.
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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 (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 (App. Div. 2002), aff'd, 176 N.J. 306 (2003). We examine the
decision for abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins.
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Co., 202 N.J. 369, 382 (2010) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 12
(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 (App. Div. 2002). See also Mayer v. Once
Upon A Rose, Inc., 429 N.J. Super. 365, 376-77 (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 (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. Although the Court noted expert opinion could have
aided the jury, "its absence [was] not fatal." Id. at 283.
Conversely, we required a liability expert in Ford Motor Credit Co. v.
Mendola, 427 N.J. Super. 226, 239 (App. Div. 2012). There, a lessee took her
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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. 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.
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 not have been held to the
common carrier standard of negligence. Although we have not yet directly
addressed this question, our case law has viewed bus lines generally, and
public transit systems specifically, as common carriers for many years. See
Lieberman v. Port Auth. of N.Y. & N.J., 132 N.J. 76 (1993) (noting in dicta
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the Port Authority Trans-Hudson rapid rail system acts as a common carrier);
Harpell v. Pub. Serv. Coordinated Transp., 20 N.J. 309 (1956) (determining a
public trolley line was a common carrier); Schott v. Weiss, 92 N.J.L. 494 (E.
& A. 1918) (holding public jitney bus was a common carrier); Model Jury
Charges (Civil), 5.73, "Common Carriers for Hire" (June 1988).
As amicus points out, other states also consider their public
transportation systems as common carriers. See Blackwell v. Fernandez, 59
N.E.2d 342 (Ill. App. Ct. 1945); Mangini v. SEPTA, 344 A.2d 621 (Pa. Super.
Ct. 1975); White v. Metro. Gov't of Nashville & Davidson Cty., 860 S.W.2d
49 (Tenn. Ct. App. 1993). California, whose own Tort Claims Act formed the
basis for New Jersey's, views public transportation systems as common
carriers. See Lopez v. S. Cal. Rapid Transit Dist., 710 P.2d 907 (Cal. 1985).
Thus, we find no error in the trial court applying the common carrier standard
of care to defendants' conduct.
C. Proximate Cause
Defendants also contend plaintiff failed to prove their actions or
inactions proximately caused her injuries. Proximate cause involves "the
question of whether the specific act or omission of the defendant was such that
the ultimate injury to the plaintiff reasonably flowed from the defendant's
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breach of duty." Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 503
(1997) (quoting Hill v. Yaskin, 75 N.J. 139, 143 (1977)).
"Proximate cause is a factual issue, to be resolved by the jury after
appropriate instruction by the trial court." Scafidi v. Seiler, 119 N.J. 93, 101
(1990). We may only overturn a jury verdict if it "is so far contrary to the
weight of the evidence as to give rise to the inescapable conclusion of mistake,
passion, prejudice, or partiality." Wytupeck v. City of Camden, 25 N.J. 450,
466 (1957).
We discern no reversible error in the jury's decision. The record
demonstrates that Coats witnessed plaintiff's entire encounter with the group of
men. The record shows the teenagers made profane comments and threw
multiple objects at plaintiff. One teenager even brandished a knife, causing
plaintiff to move from her seat. Based on the record, it was not manifestly
incorrect for the jury to determine that Coats' failure to take any action
constituted a substantial factor in causing plaintiff's injuries.
Defendants cite Sanchez v. Independent Bus Co., 358 N.J. Super. 74
(App. Div. 2003) to demonstrate lack of proximate cause. In Sanchez, the
plaintiff boarded a bus to Newark. Id. at 78. Another passenger, Johnson,
entered the bus carrying a large radio, which he turned to a loud volume. Ibid.
At the driver's request, Johnson turned down the volume. Id. at 79. When
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Johnson went to exit the bus fifteen minutes later, he turned the volume back
up. Ibid. The plaintiff asked Johnson to turn the volume down, but Johnson
ignored him. Ibid. While waiting to get off the bus, Johnson stepped on the
foot of a fellow passenger, Smith, who asked Johnson to apologize. Ibid.
Johnson did not, and the two exchanged words. Ibid. Smith punched Johnson
as he descended the stairs, and the two reentered the bus. Ibid. Smith chased
Johnson to the rear of the bus, where Johnson pulled out a concealed handgun
and fired multiple times. Ibid. One of the bullets hit the plaintiff. Ibid.
The court in Sanchez could not find proximate cause because "[t]he
record [did] not indicate that [the] defendants had any reason to know or
foresee that Johnson would harm any of the passengers. There [was] simply
nothing within reason [the] defendants could have done to prevent the shooting
under [such] circumstances." Id. at 85.
Here, the record clearly shows that Coats witnessed the teenagers harass
plaintiff for seven or eight minutes. The teenagers not only verbally harassed
plaintiff, they threw multiple objects at her, and one teenager flashed a weapon
at her. Thus, unlike Sanchez, where the violence occurred rapidly and without
warning, there was a prolonged hostile interaction between plaintiff and the
teenagers, increasing the foreseeability of plaintiff's injury.
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Further, in Sanchez, the court stated there was nothing the driver could
have done to prevent the altercation. Ibid. Here, the driver acknowledged
steps he could have taken to handle unruly or dangerous passengers, including
pulling the bus over, yelling at the teenagers to stop, calling the NJT Hotline,
and even calling the police. The record provides support for the finding that
Coats' failure to take any of these actions was a proximate cause of plaintiff's
injury. Therefore, we find no cause to disturb the jury's proximate cause
determination.
D. TCA Immunities
Defendants also assert immunities under N.J.S.A. 59:5-4, 59:3-5, and
59:3-3. Prior to trial, defendants did not move to dismiss the action based on
public entity or public employee immunity; however, defendants did raise
general TCA immunities in their answer. Defendants did not raise N.J.S.A.
59:3-5 until their post-trial motions. Nonetheless, it is a high bar for TCA
immunities to be waived. See Henebema v. Raddi, 452 N.J. Super. 438, 443
(App. Div. 2017) (finding defenses waived only after defendant failed to assert
immunity until after "three years of extensive pre-trial litigation, a lengthy and
expensive trial, an appeal to us, and an appeal to the Supreme Court"); Royster
v. New Jersey State Police, 439 N.J. Super. 554 (App. Div. 2015) (likening
sovereign immunity to subject matter jurisdiction, which cannot be waived).
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We need not address whether defendants timely asserted their TCA immunity
defenses since we conclude none apply.
A public entity or public employee is not liable for failure to provide
police protection or failure to provide sufficient police protection. N.J.S.A.
59:5-4. This section provides immunity for discretionary decisions concerning
allocation of resources, but does not provide immunity for the performance of
ministerial duties. See Wilson v. City of Jersey City, 415 N.J. Super. 138, 155
(App. Div. 2010), rev'd on other grounds, 209 N.J. 558 (2012). We have
interpreted this immunity broadly to insulate the public entity's decision
"whether to provide police protection service and, if provided, to what extent."
Rodriguez v. N.J. Sports & Exposition Authority, 193 N.J. Super. 39, 43 (App.
Div. 1983). This is because the immunity aims to protect "the government's
essential right and power to allocate its resources in accordance with its
conception of how the public interest will be best served, an exercise of
political power which should be insulated from interference by judge or jury in
a tort action." Suarez v. Dosky, 171 N.J. Super. 1, 9 (App. Div. 1979).
Conversely, the immunity does not apply to ministerial duties. See
Wilson, 415 N.J. Super. at 155. Cases of failure to warn or protect, such as
this one, have been considered ministerial, exposing public entities to liability.
This is particularly so where an employee at the scene of a dangerous situation
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has means reasonably available to warn or protect a victim, yet fails to do so.
See Rocco v. NJ Transit Rail Operations, 330 N.J. Super. 320 (App. Div.
2000) (train conductor's failure to warn passengers of dangerous condition);
Del Tufo v. Twp. of Old Bridge, 278 N.J. Super. 312 (App. Div. 1995), aff'd
on other grounds, 147 N.J. 90 (1996) (officers' failure to summon medical help
after an accident).
In his testimony, Coats acknowledged the numerous options available to
him to address the situation, such as asking the teenagers to exit the bus,
stopping the bus, calling the NJT Hotline, and calling the police. Instead,
Coats failed to take any action. Thus, we conclude immunity under N.J.S.A.
59:5-4 does not apply.
Public entities and employees are also "not liable for an injury caused by
[the] adoption of or failure to adopt any law or by [the] failure to enforce any
law." N.J.S.A. 59:3-5. Based on the explicit language of the statute,
defendants' argument must fail because the record is devoid of any evidence
that Coats had a duty to "enforce" any "law." Although there were several
actions Coats could have taken, these actions would not have been taken to
enforce a law or regulation.
A public employee "is not liable if he acts in good faith in the execution
or enforcement of any laws." N.J.S.A. 59:3-3. In Bombace v. Newark, 125
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N.J. 361, 367-72 (1991), the Court stressed the use of the word "acts,"
emphasizing that this section applies only where something has been done by
an employee executing or enforcing the law. See also Lee v. Brown, 232 N.J.
114, 127-29 (2018) (declining to apply N.J.S.A. 59:3-3 immunity because the
failure to secure emergency power shut-off after an inspection found faulty
wiring was not an affirmative act to enforce a law); Perona v. Twp. of Mullica,
270 N.J. Super. 19, 30 n.5 (App. Div. 1994) (declining to apply N.J.S.A. 59:3-
3 immunity because the police's failure to confine plaintiff under civil
confinement statute was not an act to enforce a law).
Here, plaintiff successfully argues that defendants' inaction resulted in
the harm, rather than a specific action that defendants undertook. Thus, this
immunity does not apply.
Further, a public employee cannot invoke the good faith immunity of
N.J.S.A. 59:3-3 without identifying the actual law allegedly enforced. See
Leang v. Jersey City Bd. of Educ., 399 N.J. Super. 329, 365 (App. Div. 2008),
aff'd in part and rev'd in part, 198 N.J. 557 (2009). Defendants' attorney
conceded to the trial court that he could not point to any law that Coats was
enforcing.
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E. Assessment of Bottle Thrower's Culpability
Lastly, defendants argue the trial court misinterpreted applicable statutes
when it denied defendants' request to include the bottle thrower on the verdict
sheet. On this point, we agree.
The trial court's interpretation of a statute is subject to de novo review.
State v. Nance, 228 N.J. 378, 393 (2017). With respect to the proper
interpretation of a statute, our Supreme Court has held:
A court's responsibility "is to give effect to the intent
of the Legislature." To do so, we start with the plain
language of the statute. If it clearly reveals the
Legislature's intent, the inquiry is over. If a law is
ambiguous, we may consider extrinsic sources
including legislative history. We also look to extrinsic
aids if a literal reading of the law would lead to absurd
results.
[State v. Harper, 229 N.J. 228, 237 (2017) (citations
omitted).]
"The Comparative Negligence Act [(CNA)] and the Joint Tortfeasors
Contribution Law [(JTCL), N.J.S.A. 2A:53A-1 to -5] comprise the statutory
framework for the allocation of fault when multiple parties are alleged to have
contributed to the plaintiff's harm." Town of Kearny v. Brandt, 214 N.J. 76,
96 (2013). "[J]oint tortfeasors" are "two or more persons jointly or
severally liable in tort for the same injury to person or property, whether or not
judgment has been recovered against all or some of them." N.J.S.A. 2A:53A-
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1. "The [JTCL] was enacted to promote the fair sharing of the burden of
judgment by joint tortfeasors and to prevent a plaintiff from arbitrarily
selecting his or her victim." Holloway v. State, 125 N.J. 386, 400-01 (1991).
The CNA determines the allocation of fault among joint tortfeasors. The
CNA provides that, when multiple defendants are liable, the jury shall
determine "[t]he extent, in the form of a percentage, of each party's negligence
or fault. The percentage of negligence or fault of each party shall be based on
100% and the total of all percentages of negligence or fault of all of the parties
to a suit shall be 100%." N.J.S.A. 2A:15-5.2(a)(2).
However, where a public entity or public employee is determined to be a
tortfeasor along with one or more other tortfeasors, "the public entity or public
employee shall be liable for no more than that percentage share of the damages
which is equal to the percentage of the negligence attributable to that public
entity or public employee . . . ." N.J.S.A. 59:9-3.1.
We acknowledge plaintiff's argument that the nonparty involvement –
the bottle thrower's tortious conduct – does not involve the same tort as NJ
Transit and its bus driver. In fact, the latter's tort was the failure to take steps
to prevent the bottle thrower's tort. While NJ Transit and its bus driver are not
"joint" tortfeasors with the bottle thrower, N.J.S.A. 59:9-3.1 does not require
that the other actor be a "joint" tortfeasor of the public entity or public
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employee. Instead, it limits the public entity or public employee 's share of
liability when either are determined to be a tortfeasor "in any cause of action
along with one or more other tortfeasors." Id. (emphasis added).
It is also well-settled that these principles are not limited to negligence
actions. For instance, in Suter v. San Angelo Foundry & Machine Co., 81 N.J.
150 (1979), the Court rejected the argument that the JTCL and CNA were
limited to negligence actions, reasoning that such a limitation would frustrate
"the legislative intent to mitigate the unfairness associated with the total bar to
recovery posed by common-law contributory negligence." Blazovic v.
Andrich, 124 N.J. 90, 98 (1991). Consequently, the Court determined the
CNA applies to intentional torts as well as negligence. Id. at 112.
In Jones v. Morey's Pier, Inc., 230 N.J. 142, 159 (2017) our Supreme
Court acknowledged that "[a] trial court's application of the [CNA] and [JTCL]
is complicated when . . . a party alleged to be a joint tortfeasor is not a
defendant at the time of trial." Nevertheless, decisions of
this Court and the Appellate Division have permitted a
factfinder to allocate fault to an individual or entity,
notwithstanding the fact that at the time of trial that
individual or entity is not liable to pay damages to the
plaintiff, and the allocation may reduce the amount of
damages awarded to the plaintiff.
[Id. at 161.]
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Plaintiff argues that because the bottle thrower was never added as a
party to the suit, by either plaintiff or defendants, that the jury cannot allocate
fault to him. Nonetheless, the CNA requires the "jury to make a good-faith
allocation of the percentages of negligence among joint tortfeasors based on
the evidence [–] not based on the collectability or non-collectability" of the
tortfeasors' respective shares of the damages. Brodsky v. Grinnell Haulers,
Inc., 181 N.J. 102, 121 (2004); see also Brandt, 214 N.J. at 103
("[A]pportionment of fault under the [CNA] and the [JTCL] does not turn on
whether the plaintiff is in a position to recover damages from the defendant at
issue."). See Morey's Pier, 230 N.J. at 165 (allowing allocation of fault to a
dismissed defendant); see also Cartel Capital Corp. v. Fireco of N.J., 81 N.J.
548, 569 (1980) (allocating fault to settling defendants); Burt v. W. Jersey
Health Sys., 339 N.J. Super. 296, 305 (App. Div. 2001) (allocating fault to a
doctor dismissed from malpractice litigation due to plaintiff's failure to file an
affidavit of merit).
Our courts have also apportioned fault to known but unidentified
tortfeasors. Riccio v. Prudential Prop. & Cas. Ins. Co., 108 N.J. 493, 496-97
(1987). Cockerline v. Menendez also allowed allocation of fault to "John
Does" after a multi-vehicle accident. 411 N.J. Super. 596, 610, 619 (App. Div.
2010) (quoting Riccio, 108 N.J. at 504). From these cases, it becomes clear
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that persons known to be at least partly liable should be allocated their share of
the fault, even when, in circumstances like these, they remain unidentified.
Krzykalski v. Tindall, 232 N.J. 525, 543 (2018).
Plaintiff argues NJ Transit failed to properly raise its defense of third -
party liability. To allocate fault to a second tortfeasor, "fair and timely notice"
is required. See Young v. Latta, 123 N.J. 584, 597 (1991); see also Higgins v.
Owens-Corning Fiberglas Corp., 282 N.J. Super. 600, 609, 615 (App. Div.
1995). In this case, defendants raised third-party conduct as a cause of
plaintiff's injuries as a separate defense in its answer. 1 In Krzykalski, raising
this argument in the pleadings provided sufficient notice. 232 N.J. at 529.
Plaintiff also argues that because NJ Transit was responsible for
security, it should not be able to allocate a portion of liability to a third party.
As explained in Blazovic, a defendant responsible for security should be
precluded from relying on contributory negligence "to offset its own
responsibility only in circumstances where that defendant's duty encompassed
the obligation to prevent the plaintiff's allegedly inappropriate conduct."
1
On this point, plaintiff's own amended complaint acknowledged third -party
conduct as a cause of her injuries, when she alleged that another passenger
"caused significant and permanent injuries . . . by throwing a glass object at
her face."
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Mart. v. Prime Hosp. Corp., 345 N.J. Super. 278, 287 (App. Div. 2001)
(citing Blazovic, 124 N.J. at 111).
In determining whether Blazovic excuses apportionment, we focus "on
whether plaintiff's injury was so foreseeable to the supervising defendant that a
failure to act or an inadequate response that causes the plaintiff to suffer the
foreseeable injury warrants imposition of the entire fault upon that defendant."
Id. at 292-93 (citing Blazovic, 124 N.J. at 112).
The determination of foreseeability is a factual inquiry left to a jury.
See generally ibid. Therefore, we vacate and remand for a jury to make this
determination, and if necessary, apportion fault.
On remand, we find no need to order a new trial on damages, which
defendants do not contest. "When the damages award is not tainted by the
error in the liability portion of the case and is fairly separable, retrial need not
include the issue of damages." Ogborne v. Mercer Cemetery Corp., 197 N.J.
448, 462-63 (2009) (citing Lewis v. Am. Cyanamid, 155 N.J. 544, 563 (1998)
(noting that remand on liability and comparative negligence "should not
include the issue of damages")); see also Martin, 345 N.J. Super. at 293
(stating that failure to apportion responsibility did not affect the damages
award); Weiss v. Goldfarb, 295 N.J. Super. 212, 228 (App. Div. 1996) (noting
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that since damages and liability issues are "fairly separable," there is no reason
to retry damages), rev'd on other grounds, 154 N.J. 468 (1998).
Thus, we discern no reason to disturb the damages award. Nor should
the trial judge inform the jury of the amount of the award. Instead, the judge
should simply inform the jury that another panel determined NJ Transit was at
fault and that NJ Transit's fault was a proximate cause of plaintiff's damages.
Therefore, on remand, the judge will instruct the jurors that they will only need
to address the issue of allocation of fault between the bottle thrower and
defendants.
To the extent we have not addressed any argument raised by defendants,
we deem such arguments to lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, vacated and remanded in part. We do not retain
jurisdiction.
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