KATESHA L. SALMOND v. NEW JERSEY TRANSIT (L-8511-19, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0426-21

KATESHA L. SALMOND,

Plaintiff-Appellant,

v.

NEW JERSEY TRANSIT and
DENNIS MOREJOHN,

Defendants-Respondents.
__________________________

Submitted June 8, 2022 – Decided July 14, 2022

Before Judges Gilson and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-8511-19.

Law Offices of James Vasquez, PC, attorneys for
appellant (James Vasquez and Paul F. O'Reilly, on the
briefs).

Matthew J. Platkin, Acting Attorney General, attorney
for respondents (Donna Arons, Assistant Attorney
General, of counsel; Michael T. Moran, Deputy
Attorney General, on the brief).

PER CURIAM
 Plaintiff Katesha Salmond appeals from the August 27, 2021 Law

Division order granting defendants New Jersey Transit (NJT) and Dennis

Morejohn, an NJT bus driver, summary judgment and dismissing her personal

injury complaint with prejudice. Because the judge misapplied the summary

judgment standard and misinterpreted N.J.S.A. 59:9-2(e), we reverse.

We derive the following facts from evidence the parties submitted in

support of and opposition to the summary judgment motion, "giv[ing] the benefit

of all favorable inferences to plaintiff[ ]." Angland v. Mountain Creek Resort,

Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J.

520, 523 (1995)).

According to Salmond's uncontroverted deposition testimony, on the

morning of November 13, 2018, Salmond and her two children were traveling

to the children's school in Newark on an NJT bus. As the bus approached their

stop, Salmond stood up to exit. However, as Salmond attempted to exit, the bus

driver suddenly moved the bus forward and then "slammed the brakes," causing

the bus to "jerk[] really hard" and Salmond to fall to the floor. Although

Salmond was able to exit the bus after her fall, she ultimately called 911 because

she was having trouble walking after the incident. An ambulance eventually

arrived and transported Salmond to the hospital.

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 That same day, Salmond submitted a telephone claim report to NJT

describing her fall on the bus. On the same day, Morejohn completed an

operator's occurrence report in which he denied having any knowledge of the

incident.

At her deposition, Salmond also testified that she underwent physical

therapy and chiropractic treatments for months after her fall to address the pain

she was experiencing in her neck, back, shoulder, and knee. After those

treatments failed to alleviate her pain, Salmond had outpatient surgeries on her

back and neck, as well as multiple knee injections. Salmond said the surgeries

initially helped, but her pain had since returned. She also detailed functional

limitations in her normal activities caused by the injuries.

Salmond filed a complaint in 2019 alleging that NJT and a then unknown

bus driver were liable for damages due to injuries she sustained from her fall.

In response to interrogatories, NJT initially identified Morejohn as the bus

operator in question. However, NJT later asserted, following further

investigation, that it was unclear if Morejohn was the driver as he was one of

seven possible drivers who could have been operating the bus at the time of

plaintiff's fall. By leave granted, Salmond filed an amended complaint adding

Morejohn as a defendant.

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 Salmond's interrogatory responses revealed that she had incurred

approximately $554,000 in medical expenses related to the incident. Although

Salmond had health insurance on the date of her fall, her health insurer did not

pay any of her medical expenses. It is unclear in the record whether plaintiff

submitted her medical bills to her health insurer and whether her insurer would

be required to pay her medical claims. 1

Defendants later moved for summary judgment, which the trial court

granted in an August 27, 2021 order. In a written statement of reasons

accompanying the order, the judge acknowledged that NJT and its drivers are

held to the common law's heightened standard of care for common carriers. See

Maison v. N.J. Transit Corp., 245 N.J. 270, 292 (2021) ("We therefore determine

that the heightened common-carrier standard applies to public carriers like NJ

Transit.").

However, according to the judge, Salmond had not presented any evidence

to show defendants had operated the bus negligently. Although the judge agreed

that plaintiff's version of the accident was "uncontroverted," the judge stated

1
We note that the trial judge found Salmond did not submit any bills to her
health insurer. However, no testimony or certifications in the record specify
whether any of Salmond's healthcare providers sought payment from her insurer.
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that "[n]othing in the record tend[ed] to indicate the occurrence of such a violent

or unusual jerk or jolt" bespoke "negligence in operation."

The judge reasoned:

If anything, a sudden "jerk or jolt" [on a bus] would
imply that sudden and corrective action was taken to
prevent the occurrence of an accident, which would
support a finding that [d]efendants met the heightened
duty of care required of a common carrier. Such "jerks
and jolts" are common on a bus ride, and nothing in the
record here shows that the movement complained of by
[Salmond] that allegedly led to her injuries was more
than an event incidental to the normal operation of a
bus on an urban roadway.

Additionally, the judge concluded that even if the matter proceeded to

trial, "the collateral source doctrine . . . bar[red p]laintiff from testifying in front

of the jury regarding her unpaid medical bills." The judge explained Salmond

could not "present[] evidence of her unpaid medical bills and recover[]

thereupon" because she was entitled to receive benefits from her health insurer

for the injuries sustained in the accident "but elected not to." In support, the

judge relied on a provision of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1

to 12-3, that declares if a claimant is entitled to benefits from a collateral source

for alleged injuries, the court must deduct the amount of those benefits from any

damage award against a public entity. See N.J.S.A. 59:9-2(e).

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 In this ensuing appeal, plaintiff argues the judge erred in granting

summary judgment because "a reasonable trier of fact could find that NJT

breached the heightened duty of care of a common carrier." Additionally,

plaintiff asserts that "because the collateral source rule does not bar presentation

and payment of unpaid medical bills," summary judgment was improperly

granted.

We review "the trial court's grant of summary judgment de novo under the

same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). That standard is well-

settled.

[I]f the evidence of record – the pleadings, depositions,
answers to interrogatories, and affidavits – "together
with all legitimate inferences therefrom favoring the
non-moving party, would require submission of the
issue to the trier of fact," then the trial court must deny
the motion. On the other hand, when no genuine issue
of material fact is at issue and the moving party is
entitled to a judgment as a matter of law, summary
judgment must be granted.

[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344,
366 (2016) (citations omitted) (quoting R. 4:46-2(c)).]

If no genuine issue of material fact exists, the inquiry turns to "'whether

the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting

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Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We

"accord no deference to the trial judge's conclusions on issues of law." Ibid.

Here, the judge misapplied the summary judgment standard by drawing

favorable inferences from the record for defendants, the movants, rather than for

plaintiff, the non-moving party. Salmond's uncontroverted account was the only

description of the incident in the record, and she maintained that the bus's

sudden, forceful stop caused her to fall. Yet, the judge inferred from that

testimony that the bus driver had likely taken "corrective action" to avoid an

accident, thus fulfilling his heightened duty of care. However, there is no

evidence in the record to suggest that the driver had stopped the bus suddenly to

avoid a collision.

Moreover, a bus's sudden stop that causes a passenger to fall can just as

readily be viewed as evidence of operator negligence. See Model Jury Charges

(Civil), 5.73, "Carriers for Hire" (approved June 1988) ("A violent stop, jerk or

lurch which would have been unlikely to occur if proper care had been exercised

justifies the inference of negligence . . . ."). Accordingly, on this record, the

question of whether the driver had operated the bus negligently was a genuine

issue of material fact for a jury to resolve. See R. 4:46-2(c).

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 Furthermore, the judge misconstrued N.J.S.A. 59:9-2(e) as precluding

Salmond from presenting evidence of or seeking recovery for her unpaid

medical bills. N.J.S.A. 59:9-2(e) provides:

If a claimant receives or is entitled to receive benefits
for the injuries allegedly incurred from a policy or
policies of insurance or any other source other than a
joint tortfeasor, such benefits shall be disclosed to the
court and the amount thereof which duplicates any
benefit contained in the award shall be deducted from
any award against a public entity or public employee
recovered by such claimant . . . .

Accordingly, a public entity may seek credits against a damage award for

any payments plaintiffs receive or are entitled to receive from collateral sources

for their injuries. See Furey v. Cnty. of Ocean, 273 N.J. Super. 300, 319 (App.

Div. 1994). The purpose of the provision is to prevent plaintiffs from receiving

duplicate benefits. Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 466 (App.

Div. 1994).

Nevertheless, plaintiffs are not precluded from presenting "evidence of

damages for which payment has been received from collateral sources,"

although they may choose not to do so for strategic reasons. Ibid.; see also

Margolis & Novack, Claims Against Public Entities, cmt. to N.J.S.A. 59:9-2(e)

(2022) (noting that not "present[ing] evidence regarding damages for which

payment has been received from collateral sources . . . would eliminate any

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possibility of double recovery"). Plaintiffs must simply disclose any benefits

they receive or are entitled to receive from collateral sources for their injuries

to the court. N.J.S.A. 59:9-2(e).

Thus, Salmond is not precluded from presenting evidence of her unpaid

medical bills to a jury. If Salmond receives a damages award, the trial court

would then simply deduct any payments she received or was entitled to receive

from her health insurer from the final award. See Sikes, 469 N.J. Super. at 467.

Reversed and remanded for further proceedings. We do not retain

jurisdiction.

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