On February 17, 2021, New Jersey’s Supreme Court handed down a much-awaited decision in the matter of Maison v. New Jersey Transit Corporation, a personal injury suit filed against New Jersey’s public transit corporation and one of its employees.
The lawsuit arose from a July 2013 incident in which the plaintiff boarded a New Jersey Transit Corporation bus early in the morning. Accompanying her on the public bus were four to five male teenagers, who verbally harassed her for some time on the bus. As these teenagers left the bus, one of them threw a glass bottle, striking the plaintiff in the face. This caused her significant injuries.
Plaintiff filed suit against New Jersey Transit, as well as the employee bus driver Kelvin Coats (collectively “NJ Transit”), alleging a violation of their common-carrier duty to protect passengers from the wrongful acts of co-passengers. The teenage assailant was never identified or arrested, and was not named in the suit. Plaintiff did not name any “John Doe” or other fictitious defendants, either. In its answer, NJ Transit denied negligence and asserted affirmative defenses, specifying that the damages complained of were occasioned by third parties over whom the Defendants had no control, and further claiming all defenses and immunities afforded under New Jersey’s Tort Claims Act, which codified sovereign immunity for public entities and employees.
At the time of trial, there were several disputed legal issues, including whether or not NJ Transit should be held to the heightened “common carrier” duty of care; whether the Tort Claims Act immunities should shield defendants from liability; and whether an apportionment of fault should be permitted to the jury as to the unidentified bottle-thrower. The trial court applied the common carrier standard of care, denied application of Tort Claims Act immunities, and ruled that no apportionment of fault could be made to the unidentified bottle thrower. The jury returned a $1,800,000 verdict for the plaintiff.
In the summer of 2019, in a published decision, the Appellate Division reversed on the issue of the allocation of fault. This decision established 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.” The Appellate Division’s decision relied upon New Jersey’s Comparative Negligence Act, the Joint Tortfeasors Contribution Law, and the New Jersey Tort Claims Act’s provision requiring that “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. This statutory provision has long been read to prohibit a joint and several liability threshold against public entities.
The Supreme Court’s decision did not reference the Comparative Negligence Act or the Joint Tortfeasors Contribution Law, and focused entirely on application of the Tort Claims Act’s “comparative-fault scheme,” citing the 2003 decision of Frugis v. Bracigliano,177 N.J. 250 (2003). The Court provided specific jury instructions for the jury in Maison to consider, and disapproved of the Appellate Division’s directive that a jury could choose to allocate all fault to NJ Transit.
The Supreme Court stopped short of extending its apportionment ruling to non-public actors and entities, but affirmed the Appellate Division’s decision. New Jersey law has been recognizing, in increasing contexts, the rights of defendants to ask juries and finders of fact to apportion fault to others that caused or contributed to the alleged harms. The decision marks confirmation of a defense argument that we at MKCI have been relying upon in our New Jersey cases in increasing frequency.