Opinion
DOCKET NO. A-1761-14T2
07-06-2015
ANASIA MAISON, Plaintiff-Respondent, v. NJ TRANSIT CORP., Defendant-Appellant, and KELVIN COATS, Defendant.
Erica T. Parkes, Deputy Attorney General, argued the cause for appellant (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Parkes, on the briefs). K. Raja Bhattacharya argued the cause for respondent (Bendit Weinstock, P.A., attorneys; Mr. Bhattacharya and Sherri Davis Fowler, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Leone. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3535-14. Erica T. Parkes, Deputy Attorney General, argued the cause for appellant (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Parkes, on the briefs). K. Raja Bhattacharya argued the cause for respondent (Bendit Weinstock, P.A., attorneys; Mr. Bhattacharya and Sherri Davis Fowler, on the brief). PER CURIAM
Defendant the New Jersey Transit Corporation (NJ Transit) moved to dismiss the complaint of plaintiff Anasia Maison. A Law Division judge dismissed the complaint with prejudice because defendants were immune under the Tort Claims Act (TCA or Act), N.J.S.A. 59:1-1 to 59:12-3. Another Law Division judge granted reconsideration and ordered defendants to answer the complaint. We granted NJ Transit leave to appeal. We affirm in part, reverse in part, and remand.
I.
Plaintiff's complaint alleges as follows. On July 22, 2013, plaintiff was a passenger on a bus owned by NJ Transit and operated by defendant Kelvin Coats. Other passengers on the bus "became increasingly and significantly unruly with plaintiff for a sufficient amount of time." They then caused significant and permanent injuries to plaintiff by throwing a glass object at her face.
Plaintiff's complaint contains a single count alleging that "defendants had a duty to maintain security on the bus, to keep plaintiff safe and free from harm from other passengers, and to take reasonable and necessary steps to prevent the incident from occurring and to prevent plaintiff from suffering her injuries." Plaintiff alleged that defendants failed to take any reasonable steps to prevent plaintiff's injuries, and that defendants' actions and inactions created a dangerous condition with the likelihood of a serious injury to plaintiff. Plaintiff alleged that, as a result of that negligence, she suffered severe and permanent injuries, mental anguish, expensive medical treatment, and inability to engage in normal activities.
NJ Transit moved to dismiss the complaint with prejudice for "failure to state a claim upon which relief can be granted." R. 4:6-2(e). On July 25, 2014, the first judge, ruling on the papers, issued an order dismissing the complaint with prejudice. The court endorsed the order: "The State Defendants are immune from suit for the alleged failure to provide police protection under the New Jersey Tort Claims Act, N.J.S.A. 59:5-4."
Plaintiff filed a timely motion for reconsideration, which was assigned to a second judge. Plaintiff agreed the bus driver did not have a duty to provide police protection, but argued there might be another basis for liability. Defendants argued N.J.S.A. 59:5-4 barred suit. The second judge responded that NJ Transit "may well be right at the end of the day, when there's discovery," but that the case should "be considered on some merits and I'm going to grant the motion for reconsideration." The second judge initially stated he was going to dismiss the complaint without prejudice to amendment. However, the court instead required defendants to answer the complaint within thirty days. We granted NJ Transit's motion for leave to appeal the second judge's September 19, 2014 order.
II.
The first judge's order dismissing the complaint with prejudice was a final order. A motion for reconsideration of a final order "shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." R. 4:49-2. Reconsideration of a final order should be granted "only where '1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, ___ N.J. Super. ___, ___ 2015 (App. Div. 2015) (slip op. at 4) (citation omitted).
"[T]he decision to grant or deny a motion for reconsideration rests within the sound discretion of the trial court." Ibid. "We review a judge's decision on a reconsideration motion for abuse of discretion." Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 599 (App. Div. 2014), certif. denied, ___ N.J. ___ (2015). We must hew to that standard of review.
Here, the second judge's decision to grant reconsideration was "'within the scope of [his] discretion.'" Pitney Bowes Bank, supra, ___ N.J. Super. at ___ (slip op at 5) (quoting Union Cnty. Improvement Auth. v. Artaki, LLC, 392 N.J. Super. 141, 146 (App. Div. 2007)). In ruling on the motion to dismiss under Rule 4:6-2(e), the first judge improperly made the dismissal be with prejudice.
Our Supreme Court has signaled "trial courts to approach with great caution applications for dismissal under Rule 4:6-2(e) for failure of a complaint to state a claim on which relief may be granted." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 771-72 (1989). "[S]uch motions, almost always brought at the very earliest stage of the litigation, should be granted in only the rarest of instances." Id. at 772. "If a complaint must be dismissed after it has been accorded the kind of meticulous and indulgent examination counselled in [Printing Mart], then, barring any other impediment such as a statute of limitations, the dismissal should be without prejudice to a plaintiff's filing of an amended complaint." Ibid. Thus, a dismissal under Rule 4:6-2(e) is "presumptively without prejudice," Glukowsky v. Equity One, Inc., 180 N.J. 49, 73-74 (2004), cert. denied, 543 U.S. 1049, 125 S. Ct. 864, 160 L. Ed. 2d 770 (2005), and "should ordinarily be without prejudice," Nostrame v. Santiago, 213 N.J. 109, 128 (2013).
Here, the first judge "provided no reasons for departing from that general rule." Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 116 (App. Div. 2009). As set forth below, we find no reason for the departure. Thus, we affirm the grant of the motion for reconsideration only on the ground that dismissal with prejudice was not justified.
III.
We next consider the validity of the second judge's order declining to dismiss the complaint without prejudice. In an appeal of a ruling under Rule 4:6-2(e), "review is plenary and we owe no deference to the trial judge's conclusions." State v. Cherry Hill Mitsubishi, Inc., 439 N.J. Super. 462, 467 (App. Div. 2015). Plaintiff argues the standard of review is an abuse of discretion because the Rule 4:6-2(e) ruling was decided in her favor after the grant of the reconsideration motion. However, "we owe no special deference to a trial judge's legal interpretations in deciding any motion." Giannakopoulos, supra, 438 N.J. Super. at 600 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Obtaining reconsideration does not entitle the winning party to a more favorable standard of review on a legal issue than if the party had won the legal issue in the first instance.
In reviewing a ruling under Rule 4:6-2(e), we, like the trial court, must apply the test our Supreme Court set forth in Printing Mart, supra, 116 N.J. at 746, and has repeatedly reaffirmed, see e.g., Green v. Morgan Props., 215 N.J. 431, 451-52 (2013).
"[O]ur inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart, supra, 116 N.J. at 746. The test is essentially "whether a cause of action is 'suggested' by the facts." Ibid. A "reviewing court searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Ibid. "[P]laintiffs are entitled to every reasonable inference of fact." Ibid. "The examination of a complaint's allegations of fact required by the aforestated principles should be one that is at once painstaking and undertaken with a generous and hospitable approach." Ibid.
Before applying that standard to plaintiff's complaint, we review the principles of the TCA and our interpretation of N.J.S.A. 59:5-4. In 1972, the Legislature adopted the TCA, "which reestablished the rule of immunity for public entities and public employees, with certain limited exceptions." Marcinczyk v. State Police Training Comm'n, 203 N.J. 586, 594-95 (2010); see L. 1972, c. 45. The TCA "declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein." N.J.S.A. 59:1-2. "[I]mmunity for public entities is the general rule and liability is the exception." Kemp by Wright v. State, 147 N.J. 294, 299 (1997); accord D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013) (describing that rule as "the 'guiding principle' of the [TCA]"). NJ Transit is a public entity. Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003).
N.J.S.A. 59:5-4 provides that "[n]either a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service." Ibid. This section recognizes "'the judicially accepted principle that the allocation of equipment and personnel by public entities involves the type of governmental policy determination which must remain free from the threat of tort liability.'" Sczyrek v. Cnty. of Essex, 324 N.J. Super. 235, 240 (App. Div. 1999) (quoting Suarez v. Dosky, 171 N.J. Super. 1, 8-9 (App. Div. 1979), certif. denied, 82 N.J. 300 (1980)), certif. denied, 163 N.J. 75 (2000). "We have held that [N.J.S.A. 59:5-4] should be construed as conferring a 'broad' immunity." Kepler v. Taylor Mills Developers, Inc., 357 N.J. Super. 446, 453 (App. Div. 2003) (quoting Rodriguez v. N.J. Sports & Exposition Auth., 193 N.J. Super. 39, 43 (App. Div. 1983), certif. denied, 96 N.J. 291 (1984)).
Similarly, "the common law traditionally provided immunity" to "municipalities from claims alleging inadequate police protection." Lieberman v. Port Auth. of N.Y. & N.J., 132 N.J. 76, 86-87 (1993).
A "specifically granted immunit[y]" like N.J.S.A. 59:5-4 takes precedence over the "liability provisions of the Act." Weiss v. N.J. Transit, 128 N.J. 376, 380 (1992). Thus, a claim of negligence does "not diminish the legislative immunity granted to the municipality 'for failure to provide police protection,' under N.J.S.A. 59:5-4." Id. at 381 (quoting Henschke v. Borough of Clayton, 251 N.J. Super. 393, 400 (App. Div. 1991)) (citing Lee v. Doe, 232 N.J. Super. 569, 581 (App. Div. 1989), and Wuethrich v. Delia, 155 N.J. Super. 324, 326 (App. Div.), certif. denied, 77 N.J. 486 (1978)). In Sczyrek, supra, we held that "N.J.S.A. 59:5-4 applies when the liability claim is based on alleged 'failure to provide police protection,' [even where] that failure allegedly stems from carelessness or negligence of rank and file employees, and not from a governmental policy determination." 324 N.J. Super. at 242, 245. To rule otherwise would render N.J.S.A. 59:5-4 mere surplusage, given that the TCA already immunizes public entities and employees for the exercise of discretion, including in "determin[ing] whether and how to utilize or apply existing resources" "in the face of competing demands." N.J.S.A. 59:2-3(d) and 59:3-2; see Parsons v. Mullica Twp. Bd. of Educ, 440 N.J. Super. 79, 93-95 (App. Div. 2015) (citing Malloy v. State, 76 N.J. 515, 520 (1978)).
Moreover, the Supreme Court has held that "even if a particular governmental activity is labelled 'ministerial,' it does not automatically lose its immune status." Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 412 (1988). "Although a public entity is generally liable for the ordinary negligence of its employees in performance of ministerial duties, that liability yields to a grant of immunity." Pico v. State, 116 N.J. 55, 62 (1989) (citations omitted). To exemplify those general principles, the Court cited Wuerthrich, supra, 155 N.J. Super. at 326, for the proposition that "immunity under N.J.S.A. 59:5-4 and -5 for failure to provide for police protection and to make an arrest, is not diminished by N.J.S.A. 59:2-2 and 59:2-3," which immunizes discretionary acts but not ministerial acts. Pico, supra, 116 N.J. at 62; see Rochinsky, supra, 110 N.J. at 412.
However, we have held that, where a police officer "does respond[,] . . . . N.J.S.A. 59:5-4 [will] not insulate [him] from the unfortunate results of [his] negligently executed ministerial duties." Suarez, supra, 171 N.J. Super. at 10 (police officers responding to a disabled car left the stranded occupants to walk on an interstate highway). However, "this is not a case like Suarez v. Dosky, supra, and Shore v. Hous. Auth. of Harrison, [208 N.J. Super. 348 (App. Div. 1986)], where police who were on the scene behaved negligently." Sczyrek, supra, 324 N.J. Super. at 242. Moreover, "public entities are not liable for failure to protect against the criminal propensity of third persons." Kepler, supra, 357 N.J. Super. at 453 (citing Wuethrich, supra, 155 N.J. Super. at 326).
By contrast, private property owners have "a duty to take reasonable security precautions to protect tenants and their guests from foreseeable criminal acts." Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 121 (2005). Here, plaintiff concedes defendants had no notice that such harassment would occur on the bus until the harassment began.
To support that N.J.S.A. 59:5-4 does not immunize the bus driver's alleged failure to perform ministerial duties, plaintiff cites Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 498 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008), which held that "the negligent performance of [police] 9-1-1 operator duties is not entitled to any immunity under N.J.S.A. 59:5-4." However, the Supreme Court reversed a case that followed Massachi, Wilson ex rel. Manzano v. City of Jersey City, 415 N.J. Super. 138, 154 (App. Div. 2010), and precluded liability in the situation, "hold[ing] that the 9-1-1 operators, and their employer . . . , are immune for any negligent mishandling of the emergency calls" under the 9-1-1 immunity statute, N.J.S.A. 52:17C-10(d). Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 588 (2012). The Court criticized Massachi's contrary conclusion, finding it "misread N.J.S.A. 52:17C-10 and the Legislature's intent" and reached an "absurd result" that "cannot be harmonized with the broad-based statutory immunities provided to police, fire, and first-aid personnel who respond to emergencies." Id. at 574, 582-87. Though the Court's finding of immunity under N.J.S.A. 52:17C-10(d) left "no need to address the Appellate Division's analysis and rulings under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3," id. at 589, Massachi's finding of no immunity under N.J.S.A. 59:5-4 must be viewed with caution.
With these general principles in mind, we look at plaintiff's complaint to see if it runs afoul of N.J.S.A. 59:5- 4's broad immunity provided for "failure to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service."
Here, it was undisputed that at least part of plaintiff's complaint was barred by N.J.S.A. 59:5-4. Plaintiff's complaint claimed "defendants had a duty to maintain security on the bus." At oral argument on the motion to reconsider, plaintiff's counsel noted "defendants are immune from the alleged failure to provide police protection; but, that was only, you know, security was one aspect of our complaint." Plaintiff's counsel reiterated that the first judge "assumed that plaintiff was only alleging a duty that would require the bus driver to [] provide police protection. That was part of . . . security, that was one of the plaintiff's allegations and I agree. That's [] out[.] . . . [T]here is no duty[.]" Thus, plaintiff conceded the claim in her complaint that "defendants had a duty to maintain security on the bus" was barred by the immunity provided by N.J.S.A. 59:5-4. That claim, at least, should have been dismissed from the complaint. Scyrek, supra, 324 N.J. Super. at 241; see Kepler, 357 N.J. Super. at 449, 452-53 (finding N.J.S.A. 59:5-4 "dispositive" of a suit against a municipality for failing to provide any police protection from an assault in a parking lot).
Plaintiff's complaint further claims defendants had a duty "to keep plaintiff safe and free from harm from other passengers, and to take reasonable and necessary steps to prevent the incident from occurring and to prevent plaintiff from suffering her injuries." As the first judge correctly observed, those claims could be read as contravening N.J.S.A. 59:5-4 and the policies of the TCA.
For example, in Rodriguez, supra, a plaintiff was assaulted in a racetrack parking lot and claimed the Sports and Exposition Authority failed to "(1) provide proper security and lighting, (2) warn of known dangers and (3) take reasonable precautions to assure that no harm would come to those lawfully on the premises." 193 N.J. Super. at 41. We upheld dismissal of the complaint because "[t]he gravamen of Rodriguez's claim is that the Authority did not provide adequate and effective security. This essentially is a claim that the Authority did not provide 'sufficient police protection service' and hence falls squarely within the broad immunity granted to the Authority and its employees by N.J.S.A. 59:5-4." Id. at 43.
We have also found the Authority immune from a claim that it failed "to provide a safe place" in a stadium parking lot free from rowdy youths, because "[t]he gist of their cause of action is inadequate police protection which is controlled by N.J.S.A. 59:5-4." Vanchieri v. N.J. Sports & Exposition Auth., 201 N.J. Super. 34, 42 (App. Div. 1985), rev'd in part on other grounds, 104 N.J. 80 (1986). We reached a similar conclusion in Setrin v. Glassboro State Coll., 136 N.J. Super. 329 (App. Div. 1975), where a plaintiff assaulted on campus claimed the college failed to protect against "a dangerous condition." Id. at 332-33. We rejected the claim because "[i]n essence, plaintiffs' contentions amount to no more than a claim that [he] did not receive sufficient police protection service." Id. at 335.
Plaintiff has not alleged any dangerous condition on the bus independent of the persons harassing her. Cf. Foster v. Newark Hous. Auth., 389 N.J. Super. 60, 69-70 (App. Div. 2006) (plaintiff's claim that defendant failed to activate the outer door locks was not barred by N.J.S.A. 59:5-4).
In Sczyrek, supra, we held the TCA "compels a dismissal of plaintiffs' claim based on defendants' adoption of an allegedly inadequate security plan" at a county courthouse, including "the question of whether and to what extent employees and others should be required to pass through monitoring devices." 324 N.J. Super. at 239, 241-42. "Any such claim would amount to a suit based on a 'failure to provide police protection service' or 'sufficient police protection service,' which is barred by N.J.S.A. 59:5-4." Id. at 242.
As in Rodriguez, Vanchieri, Setrin, and Sczyrek, the gist of all of plaintiff's claims could be read as a failure to provide "police protection services." N.J.S.A. 59:5-4. Nothing in the complaint expresses any other basis for liability.
In briefing and argument, however, plaintiff asserted the bus driver could have taken other steps upon realizing plaintiff was being harassed, and mentioned three such steps: (1) ask the persons to cease harassing plaintiff, (2) call the police, and (3) stop the bus.
We are uncertain of the efficacy of the first step, given plaintiff's concession she was not alleging the bus driver had a duty to physically restrain the persons assaulting her. We query whether faulting the driver for failing to call the police might be regarded as alleging "failure to provide police protection service" within the literal language of N.J.S.A. 59:5-4. However, to the extent that plaintiff is arguing that stopping the bus might have allowed her to escape her alleged assailants on her own or to obtain assistance, we cannot say that such a hypothetical claim would be considered "provid[ing] police protection service" or barred by N.J.S.A. 59:5-4.
In Sczyrek, supra, the plaintiff claimed that the county should have reacted to warnings that a crime was about to occur. 324 N.J. Super. at 238. We found the claim barred because it fell within N.J.S.A. 59:5-4's literal language. Id. at 242-43. We held it would be contrary to "the language of the statute, the holdings of [Lee, supra, 232 N.J. Super. at 573-75, and Wuethrich, supra, 155 N.J. Super. at 326], and the basic policy of the Tort Claims Act" to give N.J.S.A. 59:5-4 "a construction of its immunity provisions which is narrower than its language would normally dictate." Id. at 243-45.
However, plaintiff's asserted three steps do not appear on "the face of the complaint." Printing Mart, supra, 116 N.J. at 746. Plaintiff's complaint did not allege that the bus driver was aware plaintiff was being harassed, that plaintiff requested the driver to take any of those steps, or that taking such steps would have prevented her injury. We therefore do not resolve the ultimate issue of whether failure to take those steps is immunized by N.J.S.A. 59:5-4.
We similarly do not resolve plaintiff's claim on appeal that NJ Transit is a common carrier. Plaintiff did not allege that in the complaint or argue that in the trial court. "'[A]ppellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" State v. Robinson, 200 N.J. 1, 20 (2009); accord Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
We note that "[i]t is by now well-settled that th[e] history [of the California Tort Claims Act] is particularly significant to our interpretation of the [TCA], as are the interpretations of the California statute by its judiciary, both before and after our Legislature's enactment of the [TCA.]" Tice v. Cramer, 133 N.J. 347, 361-62 (1993) (citation omitted). Indeed, N.J.S.A. 59:5-4 "was modeled after" Cal. Gov't Code § 845 and took its language from § 845. Lee, supra, 232 N.J. Super. at 578; see also Suarez, supra, 171 N.J. Super. at 9. Neither party has cited any California law, but our decisions have cited a pertinent case, Lopez v. Southern California Rapid Transit District, 710 P.2d 907 (Cal. 1985). Lieberman v. Port Auth. of N.Y. & N.J., 254 N.J. Super. 456, 468-69 (App. Div. 1992), rev'd, 132 N.J. 76 (1993); Lee, supra, 232 N.J. Super. at 580.
In Lopez, supra, the California Supreme Court addressed whether the Southern California Rapid Transit District (RTD), a public corporation and a common carrier under California law, had a duty to protect passengers aboard its buses from assaults by fellow passengers. 710 P.2d at 908. The court held "that RTD does owe such a duty to its passengers and that RTD is not immune from liability under the facts alleged in plaintiffs' complaint." Ibid. In particular, the court found there was no immunity under § 845. Id. at 914-15. The court reversed the dismissal of the complaint, suggesting that California common carrier law "might require a bus driver to take any number of 'precautionary measures' to prevent harm to passengers, such as warning unruly passengers to behave, ejecting those who refuse to behave, and summoning the assistance of police." Id. at 914. The court did not hold § 845 immunity would "necessarily be inapplicable to the facts" as they unfolded, but concluded that plaintiffs' complaint alleged facts sufficient to survive a motion to dismiss. Id. at 917.
The complaint in Lopez alleged the RTD was aware of frequent assaults on that bus route, a group of juveniles was harassing the plaintiffs, and that the bus driver had notice of the altercation, but took no precautionary measures and continued to operate the bus and allowed the passengers to engage in a violent fight. Ibid.
The court ruled § 845 was "not implicated" because the plaintiffs did not allege "that RTD was negligent in failing to provide police personnel or armed guards on board its buses." Id. at 914; see also Zelig v. Cnty. of L.A., 45 P.3d 1171, 1193 (Cal. 2002) (Lopez "did not question that the public transit district would be immune had [that] been alleged"). --------
New Jersey courts are not bound to follow California opinions on tort claims law. E.g., Tice, supra, 133 N.J. at 369-70; Weiss, supra, 128 N.J. at 385. Further, the allegations in the Lopez complaint differ from the allegations in plaintiff's complaint. We decline to opine on Lopez's applicability here, both because the issue of whether NJ Transit is a common carrier is not now before us, and because the parties have not yet addressed its applicability.
Nonetheless, giving plaintiff "every reasonable inference of fact," and employing "a generous and hospitable approach," a "fundament" of such a cause of action might be "'suggested'" or "gleaned" from plaintiff's complaint. Printing Mart, supra, 116 N.J. at 746. This is not a case where the "plaintiff conceded that he had no further facts to plead," Nostrame, supra, 213 N.J. at 128, or that "discovery would not provide" a basis for relief, Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005). Thus, the first judge erred in dismissing the complaint with prejudice.
However, plaintiff's complaint did not allege her hypothesized three steps, or that NJ Transit was a common carrier. Thus, the filing of an amended complaint is necessary to raise such allegations appropriately. Therefore, we hold that the complaint should have been dismissed "without prejudice to the plaintiff's filing of an amended complaint." See Printing Mart, supra, 116 N.J. at 772.
Accordingly, we reverse the order requiring defendants to file an answer, and remand for dismissal of the complaint. The dismissal shall be without prejudice to plaintiff filing an amended complaint that sets forth a claim for liability that is not barred by N.J.S.A. 59:5-4 as explicated in this opinion. We express no opinion on the validity of any such amended complaint. Our ruling is without prejudice to defendants filing a pretrial motion raising any grounds of immunity implicated by any amended complaint.
Affirmed in part, reversed in part, and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION