Full Opinion

SYLLABUS This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court. In the interest of brevity, portions of an opinion may not have been summarized. Anasia Maison v. New Jersey Transit Corporation (A-34/35-19) (083484) Argued September 29, 2020 -- Decided February 17, 2021 ALBIN, J., writing for the Court. In this appeal, the Court considers whether, under the New Jersey Tort Claims Act (TCA), the heightened duty-of-care standard governing private common carriers applies to public common carriers such as defendant New Jersey Transit Corporation (NJ Transit). The Court also considers whether NJ Transit and the defendant bus driver are shielded from liability by any of the three TCA immunities they invoke, as well as whether comparative fault could be allocated to the unidentified teen who threw a bottle that struck plaintiff Anasia Maison in the forehead while on an NJ Transit bus. In July 2013, Maison, a twenty-year-old college student, boarded an NJ Transit bus operated by defendant Kelvin Coats 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, the teenagers verbally harassed her, and one threw an object striking her in the face. The harassment continued, with one of the teenagers brandishing a knife. Fearful, Maison unsuccessfully attempted to change her seat. As the teenagers left the bus, one threw a bottle hitting Maison in the face. Maison called out for help, and a passenger gave her a cell phone, which she used to call the police and an ambulance. Maison was transported to a hospital, where she was treated for a serious and permanent injury to her forehead. Coats testified that he 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 that “it’s not my job to get involved.” After Maison was struck, he followed NJ Transit’s procedure and pushed a button to call NJ Transit’s control center. Coats waited for about fifteen minutes before the control center returned his call. The control center then contacted the police and emergency medical services. Coats admitted that he monitored the situation in the rear of the bus and that he did not stop the bus, tell the young men to “knock it off,” call the police, or contact NJ Transit’s control center until after Maison was hit with the bottle. The police never apprehended the young men who assaulted Maison. 1 Maison filed a complaint alleging that NJ Transit and 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. 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. The Appellate Division affirmed as to the common-carrier standard and the lack of immunity, but it 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 defendants. See 460 N.J. Super. 222, 233-42 (App. Div. 2019). 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. Id. at 242. The Court granted defendants’ petition for certification “limited to the issues of whether New Jersey Transit buses and drivers are subject to the common carrier standard of negligence and whether defendants have immunity under the Tort Claims Act.” 240 N.J. 243 (2019). The Court also granted Maison’s cross-petition for certification on whether fault could be allocated to the bottle thrower. See ibid. HELD: NJ 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). None of the TCA immunities defendants asserted abrogated their common-carrier duty to protect Maison from the dangerous and threatening conduct of the teenage passengers. 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). 1. By common law and statutory definitions, NJ Transit is a common carrier for hire. For well over a century, the common law has imposed a heightened standard of care on common carriers that requires them to exercise “utmost caution” to protect their passengers, which includes “the duty to protect passengers from wrongful acts of co- passengers, if the utmost care could have prevented those acts from injuring a passenger.” Model Jury Charges (Civil), 5.73(A)(2). Here, the Court determines whether the heightened common-carrier standard applies to public transit systems and is consistent with the TCA. (pp. 20-23) 2 2. The TCA declares that “the public policy of this State [is] that public entities shall only be liable for their negligence within the limitations of [the TCA].” N.J.S.A. 59:1-2 (emphasis added). It does not limit liability to “ordinary negligence.” The spectrum of negligence includes the duty to exercise reasonable or prudent care and the duty to exercise the utmost care, as in the case of common carriers. The Legislature is presumed to have been aware of case law holding that under the doctrine of negligence, the degree of the duty owed to the public depends on the kind of activity undertaken and the risk involved. The TCA directs that liability is to be imposed on public entities for the acts or omissions of their employees “in the same manner and to the same extent as . . . private individual[s] under like circumstances,” N.J.S.A. 59:2-2(a), and on public employees “to the same extent as . . . private person[s],” N.J.S.A. 59:3-1(a). That directive strongly implies that similarly situated public common carriers and private common carriers are not to be treated in a different manner or to a different extent for liability purposes. When the Legislature adopted a more rigorous standard for holding a public entity liable in N.J.S.A. 59:4-2, it did so explicitly through the “palpably unreasonable” standard. And neither N.J.S.A. 59:2-3 nor the pre-TCA case on which defendants rely limits liability to ordinary negligence. (pp. 23-29) 3. A number of jurisdictions hold public entities to the same heightened common-carrier standard as private carriers; others do not impose the heightened common-carrier on either. In the rare instance where a jurisdiction has imposed a dual standard -- a heightened duty of care for privately owned carriers but a lesser, ordinary duty of care for a public carrier -- it has departed from the traditional common law rule only after its legislature specifically abrogated that rule by a clearly written statute. (pp. 29-33) 4. A passenger’s expectation of safety on a bus does not vary depending on who owns the carrier, and the Court held long ago that the heightened common-carrier standard applied to trolleys operated by NJ Transit’s predecessor. See Harpell v. Pub. Serv. Coordinated Transp., 20 N.J. 309 (1956). The TCA does not command a discordant result. The Court holds that NJ Transit and its bus drivers are governed by the same common-carrier standard applicable to private carriers, and notes that they are liable only for the wrongful acts of co-passengers who present “dangers that are known or are reasonably foreseeable,” and only “if the utmost care could have prevented” the harm. See Model Jury Charges (Civil), 5.73(A)(2). (pp. 34-36) 5. Public officials are cloaked with immunity from tort claims under certain circumstances designated in the TCA. Public employees and public entities, however, have the burden to plead and prove an immunity under the TCA. Typically, for purposes of judicial economy, a public entity or public employee should assert the immunity in a pre-trial motion for summary judgment. The Court shares the trial court’s concerns about defendants’ delay in raising several claims of immunity until the time of trial, and it disapproves of the assertion of a TCA immunity for the first time in a post-trial motion, but it considers the merits of each immunity asserted. (pp. 36-37) 3 6. N.J.S.A. 59:5-4 provides immunity for failure to provide police protection. The statute’s dominant theme is discretionary governmental decisionmaking. Faced with a factual scenario similar to this one, the California Supreme Court held that the California provision that was the model for N.J.S.A. 59:5-4 did not apply; it found that “warning unruly passengers to behave, ejecting those who refuse to behave, and summoning the assistance of police” do not involve political or budgetary decisions or constitute “police services” or the type of discretionary decisions falling within the ambit of the immunity. Lopez v. S. Cal. Rapid Transit Dist., 710 P.2d 907, 914-15 (Cal. 1985). Here, Maison does not claim that NJ Transit should have allocated more resources for security or that Coats should have acted as would a police officer or thrust himself in harm’s way to quell the disturbance on the bus. Maison merely maintains that the duty to exercise the utmost care required that Coats take one or more of the common-sense steps -- telling the teens “to knock it off,” pulling the bus over, or calling NJ Transit control or the police -- that he admitted were available to him. N.J.S.A. 59:5-4 does not apply here. (pp. 37-41) 7. Nor are defendants immune from liability on the basis that they failed to enforce a law under N.J.S.A. 59:2-4 (public entity) and N.J.S.A. 59:3-5 (public employee). In a post- trial motion, defendants pointed to various regulations promulgated by NJ Transit, governing the standards of behavior to be followed by passengers, which they purported that Coats failed to enforce. The Court explains that defendants failed to develop a record on this issue. Further, the critical causative conduct giving rise to Maison’s injuries and her legal claims was defendants’ breach of their common-carrier duties -- their failure to protect her from the reasonably foreseeable dangerous conduct of other passengers, not from Coats’s purported failure to enforce NJ Transit’s regulations. (pp. 41-46) 8. And defendants are not shielded from liability for good-faith enforcement of a law under N.J.S.A. 59:3-3. Defendants qualify for this immunity only if they engaged in some act or acts to enforce a law. N.J.S.A. 59:3-3 does not apply to this case -- a claim of negligent inaction -- because Coats did not act to enforce any law. (pp. 46-47) 9. Frugis v. Bracigliano controls the outcome of the allocation-of-fault issue in this case. In Frugis, the Court held that the TCA explicitly mandated apportionment of damages in cases involving negligent public entities and “other tortfeasors,” regardless of whether the other tortfeasors’ conduct was intentional. 177 N.J. at 276 (quoting N.J.S.A. 59:9-3.1). And the plain language of N.J.S.A. 59:9-3.1 requires an apportionment of fault between tortfeasors, without exception, and regardless of whether a tortfeasor is named as a party in the action. The Court recognizes the policy concern that permitting comparative fault might tend to dilute or diminish the common carrier’s duty. See Frugis, 177 N.J. at 268, 273, 281-83. But that is a policy choice made by the Legislature, and in the seventeen years since the Frugis decision, in which the plaintiffs raised that policy concern, the Legislature has not amended the TCA’s comparative-fault statute. (pp. 47-51) 4 10. Although the TCA mandates allocation of fault in this case, the Court is mindful of the challenge presented to a jury in apportioning fault between a negligent common carrier and an intentional tortfeasor who committed the very harm the carrier was obligated to protect against. And the Court acknowledges the strong public policy considerations that counsel in favor of giving guidance to the jury to minimize the likelihood of diluting the carrier’s responsibility. The Court therefore sets forth specific jury instructions that should be given in addition to the model common-carrier charge, Model Jury Charges (Civil), 5.73(A). (pp. 51-52) 11. On remand, the trial court should charge the new jury with the additional instructions and, after apportionment, mold the verdict accordingly. The Court disapproves of the Appellate Division’s directive in this case that if the new jury finds that the injuries inflicted by the bottle thrower were “so foreseeable” to the bus driver, then the entirety of the fault may be allocated to defendants. See 460 N.J. Super. at 241-42. Nevertheless, foreseeability is an important factor to be considered in the determination of apportionment. Otherwise, the Court affirms the Appellate Division, including its determination that the damages award should stand and that the new jury should not be informed about the amount of the award. (pp. 52-53) AFFIRMED AS MODIFIED. REMANDED to the trial court. JUSTICE PATTERSON, concurring in part and dissenting in part, concurs that NJ Transit cannot rely on the TCA immunities that it asserts in this case, but disagrees with the imposition of the heightened “common carrier” standard of care on NJ Transit. Noting that the Legislature made clear when it enacted the TCA that its waiver of sovereign immunity was strictly limited by the terms of the statute itself, and is not subject to expansion by case law, Justice Patterson considers the TCA’s plain language -- confirmed by its legislative history -- to express the Legislature’s clear intent: a public entity or employee sued for ministerial acts and not entitled to immunity may be held to the standard of reasonable care that governs ordinary negligence claims, but not a heightened duty of care. In Justice Patterson’s view, with no signal from the Legislature that it intends to subject NJ Transit to expanded liability under a heightened standard, the majority effects a stark and unwarranted change in the law. Justice Patterson concurs that the TCA mandates the opportunity to allocate fault between NJ Transit and the intentional tortfeasor, but finds that the majority’s jury charge presses the jury to allocate most -- if not all -- of the fault in this case to NJ Transit, which departs both from the statutory intent that the trier of fact independently determine the allocation of fault and from the courts’ traditionally neutral presentation of apportionment questions to juries. CHIEF 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. 5 SUPREME COURT OF NEW JERSEY A-34/35 September Term 2019 083484 Anasia Maison, Plaintiff-Respondent/Cross-Appellant, v. New Jersey Transit Corporation and Kelvin Coats, Defendants-Appellants/Cross-Respondents. On certification to the Superior Court, Appellate Division, whose opinion is reported at 460 N.J. Super. 222 (App. Div. 2019). Argued Decided September 29, 2020 February 17, 2021 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; 1 Edward J. Fanning, Jr., and David R. Kott, of counsel and on the brief, and Benjamin D. Heller, on the brief). JUSTICE ALBIN delivered the opinion of the Court. 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. NJ 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 NJ Transit. 2 In this case, plaintiff Anasia Maison on her commute home from work took an NJ 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 NJ 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 NJ 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 3 court erred in not submitting to the jury the decision whether to allocate fault between the intentional tortfeasor -- the bottle thrower -- and NJ 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 NJ 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 4 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 NJ 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 NJ Transit train 1 The procedural history detailing the dismissal of the original complaint that led to the filing of the present complaint is not germane to this appeal. 5 to Penn Station in Newark, arriving there at around 1:00 a.m. At Broad and Market Streets, she boarded an NJ 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, 6 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 2 In his deposition testimony made part of the record, Coats recalled that the “shouting and yelling” continued from the time the teenagers boarded the bus until they exited, but in his trial testimony, he stated that the “nasty” verbal exchanges died down at some point. 7 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 and was bleeding profusely and that a passenger was consoling her. Coats got up, observed the shattered pieces of a liquor bottle on the ground and seats, and asked if she wanted an ambulance or the police. She “screamed,” “yes.” Coats, however, did not call directly for an ambulance or the police. He followed NJ Transit’s procedure and pushed a button to call NJ Transit’s control center. Coats waited for about fifteen minutes before the control center returned his call. The control center then contacted the police and emergency 8 medical services. Coats did not believe that NJ Transit policy permitted him to use his cell phone to contact first responders. Coats stated that he never observed the young men throw objects at Maison or flash a knife, never heard Maison call out to him, and never saw her get out of her seat. He admitted that he monitored the situation in the rear of the bus during the seven- to eight-minute ride to Hayes Circle and that he did not stop the bus, tell the young men to “knock it off,” call the police, or contact NJ Transit’s control center until after Maison was hit with the bottle. The police never apprehended the young men who tormented and assaulted Maison. B. In her amended complaint, Maison did not assert a cause of action or claim for contribution against the unidentified bottle thrower. The trial court denied defendants’ requests that the unidentified bottle thrower be included on the verdict sheet for purposes of allocation of either fault or damages and that the jury be charged on ordinary negligence instead of common-carrier liability. After the close of the evidence, the court rejected defendants’ application for a directed verdict based on the TCA immunities of good-faith enforcement of 9 the law, N.J.S.A. 59:3-3, and failure to provide police protection, N.J.S.A. 59:5-4.3 The jury was charged on the law applicable to common carriers, as set forth in Model Jury Charges (Civil), 5.73(A)(2), “Carriers for Hire” (approved June 1988). The court instructed the jury that [a] common carrier must exercise a high degree of care to protect its passengers from dangers that are known or reasonably foreseeable. Carriers must use the u[t]most caution to protect their passengers. The kind of caution that is characteristic of a very careful and prudent person. A carrier must act with the highest possible care consistent with the nature of the undertaking involved. This includes the duty to protect passengers from wrongful acts of co-passengers if the u[t]most care could have prevented those acts from injuring a passenger. If a danger was known or reasonably could have been anticipated[,] the carrier has a duty to protect its passenger from any injury that could be caused by that danger. The jury returned a verdict finding both NJ Transit and Coats liable. The jury also found that Maison sustained a permanent disfigurement from her injury and awarded her $1,800,000 in damages. In a written opinion, the trial court denied defendants’ motion for judgment notwithstanding the verdict, a new trial, or a remittitur. The trial 3 The court asked defendants’ counsel what law the bus driver was “executing or enforcing.” He responded, “[c]andidly I’m at a loss to articulate one.” 10 court ruled that the TCA did not abrogate the heightened common-carrier standard of care for public carriers. It underscored the language in the TCA that, in the absence of an applicable immunity, public entities and public employees are liable “in the same manner and to the same extent” as private companies and private persons “under like circumstances.” See N.J.S.A. 59:2- 2(a); see also N.J.S.A. 59:3-1(a). The court also rejected again defendants’ arguments that the TCA’s police-protection and good-faith-enforcement-of-any-law immunities shielded defendants from liability. 4 According to the court, the police-protection immunity did not apply because the case was not about whether defendants failed to provide sufficient police-protection services or properly allocated resources but rather about whether Coats breached his duty as a bus driver to stop the bus or timely call the police or NJ Transit’s control center. The court, moreover, pointedly dismissed defendants’ newly raised post- trial argument that the good-faith-enforcement-of-any-law immunity applied because specific NJ Transit regulations governed the conduct of passengers and Coats should be presumed to have been enforcing them. The court noted that defendants presented neither evidence nor argument during trial to support 4 Although the court addressed the merits of defendants’ motion, it questioned whether “[d]efendants improperly withheld their claims of immunity until the day of trial, under the guise of in limine motions.” 11 that TCA immunity and, in any event, the trial evidence showed that Coats did not take any affirmative step to enforce a law. The court also found that defendants’ argument that Coats was protected from liability by the failure-to-enforce-any-law immunity, N.J.S.A. 59-3-5 -- an argument raised for the first time post-trial -- was neither cognizable on a new trial motion nor legally supported by the record.5 Finally, the court reaffirmed its earlier determination to exclude from the verdict sheet the unidentified bottle thrower, who was not named in the pleadings as a John Doe joint tortfeasor by the parties. The court concluded that N.J.S.A. 59:9-3.1 permits an allocation of fault only when other potentially liable defendants or third-party defendants are named in the pleadings. C. The Appellate Division affirmed in part and reversed in part, remanding for a new trial only on the allocation of fault between the bottle thrower and 5 Likewise, the court found meritless defendants’ first-time-raised post-trial claim that the exercise of Coats’s judgment involved discretionary as opposed to ministerial acts, entitling defendants to immunity under N.J.S.A. 59:2 -3(a) and :3-2(a). The court emphasized that the discretionary immunity implicates policy-making, judgmental decisions, not the ministerial inaction that occurred on Coats’s bus. Defendants abandoned that argument on appeal. 12 defendants.6 Maison v. NJ Transit Corp., 460 N.J. Super. 222, 242 (App. Div. 2019). The Appellate Division concluded that the trial court correctly held NJ Transit to “the common carrier standard of negligence” and observed that “our case law has viewed bus lines generally, and public transit systems specifically, as common carriers for many years.” Id. at 233 (citing, e.g., Lieberman v. Port Auth. of N.Y. & N.J., 132 N.J. 76 (1993); Harpell v. Pub. Serv. Coordinated Transp., 20 N.J. 309 (1956)). The Appellate Division also found none of the TCA immunity defenses asserted by defendants meritorious, deciding to elide the issue of whether those defenses were timely raised. Id. at 236. The police-protection immunity, N.J.S.A. 59:5-4, did not apply because Coats failed to perform the ministerial duty of taking certain steps to protect Maison -- steps that did not require discretionary calls about the allocation of resources. Id. at 236-37. The failure-to-enforce-any-law immunity, N.J.S.A. 59:3-5, did not apply because nothing in the record suggested that Coats had a duty to enforce a law or regulation; rather, Coats’s breach of duty related to his failure to take certain actions expected of a common carrier. Id. at 233-34, 237. The good-faith- enforcement-of-any-law immunity, N.J.S.A. 59:3-3, did not apply because the 6 We recite only those issues relevant to this appeal. 13 harm to Maison resulted from Coats’s inaction, not from his taking a specific act that fell within the scope of the immunity. Id. at 237-38. Last, the Appellate Division determined that the trial court erred in not placing the bottle thrower on the verdict sheet to allow for the allocation of fault among the tortfeasors. Id. at 238-42. It reasoned that when a public entity and public employee are subject to a negligence action that involves other alleged tortfeasors, N.J.S.A. 59:9-3.1 requires an apportionment of fault, even if the other tortfeasors are not identified or joined as parties. Id. at 238- 41. The Appellate Division, however, noted an exception to that general rule when the defendant’s duty to provide security encompasses the obligation to prevent a tortfeasor’s wrongful conduct. Id. at 241 (citing Martin v. Prime Hosp. Corp., 345 N.J. Super. 278, 287 (App. Div. 2001)). According to the Appellate Division, in that scenario where a tortfeasor’s infliction of injury on a plaintiff was “so foreseeable,” imposing the entire fault on the common- carrier defendants may be warranted if they failed to adequately respond to the threat. Id. at 241-42 (quoting Martin, 345 N.J. Super. at 292-93). In that circumstance, “[t]he determination of foreseeability is a factual inquiry left to the jury.” Id. at 242. 14 The Appellate Division remanded the case for a new trial limited to a jury making that determination and, if necessary, apportioning fault. Ibid. It discerned, however, “no reason to disturb the damages award” and instructed the trial judge to inform the new jury that an earlier jury found that defendants were both at fault and the proximate cause of Maison’s damages. Ibid. In short, the Appellate Division left to the new jury to decide whether Coats’s inadequate response led to clearly foreseeable injuries to Maison such that full liability should be imposed on defendants. Ibid. We granted defendants’ petition for certification “limited to the issues of whether New Jersey Transit buses and drivers are subject to the common carrier standard of negligence and whether defendants have immunity under the Tort Claims Act.” 240 N.J. 243 (2019). We also granted Maison’s cross- petition for certification on whether the Appellate Division erred in finding that fault could be allocated to the bottle thrower. See ibid. We granted the joint motion of the New Jersey Business & Industry Association, the Commerce and Industry Association of New Jersey, and the New Jersey Chamber of Commerce to participate as amici curiae. 15 II. A. Defendants urge this Court to reverse the judgment of the Appellate Division on several grounds. Defendants argue that they are not subject to the heightened standard of care required of common carriers -- a standard that they say is “irreconcilable with the TCA.” They contend that their duty is capped at the standard of “ordinary prudence” or “palpable unreasonableness.” They also claim that Maison’s negligence action should have been dismissed based on the TCA immunities, emphasizing that public entities and employees “do not have the duty to do everything that might be done.” Defendants maintain that the police-protection immunity, N.J.S.A. 59:5-4, shields from liability public transit authorities that fail to protect passengers from even foreseeable violent acts committed by “bad actors” on a bus or train. The immunity is a defense, they say, to the failure of Coats to eject the unruly teenagers, to call the NJ Transit Hotline or the police, or to “otherwise protect Maison from [the bottle thrower].” Likewise, defendants reason that the failure-to-enforce-any-law immunities, N.J.S.A. 59:2-4, :3-5, bar their liability because Maison’s claim, in disguise, is that Coats had a duty to enforce NJ Transit regulations prohibiting passengers from engaging in tumultuous behavior, throwing 16 objects, or threatening or striking others. Even if Coats’s conduct were to be construed as “a negligent affirmative act,” defendants contend that they are protected by the good-faith-enforcement-of-any-law immunity under N.J.S.A. 59:3-3 and N.J.S.A. 59:2-2(b). Last, defendants submit that the Appellate Division correctly remanded for a new trial to allocate the bottle thrower’s share of fault but that it erred in directing that the jury “determine whether all fault should be allocated against [defendants] and only ‘if necessary, apportio