Wednesday, May 9, 2018 – The infamous phantom vehicle reared its ugly (cylinder) head a few weeks ago in Krzykalski v. Tindall, the facts of which otherwise are rather innocuous: plaintiff Krzykalski was attempting to make a left-hand turn when he was rear-ended by defendant Tindall. Both agreed, however, that a third driver – our phantom vehicle – unexpectedly made a left-hand turn from the right lane, cutting off both parties. Plaintiff was able to stop without striking the phantom vehicle; defendant struck the rear of plaintiff’s vehicle.

At trial, plaintiff made two requests: (1) to enter a directed verdict on liability against defendant Tindall for the rear-end impact and (2) to remove John Doe from the jury verdict sheet. The trial judge denied both requests. The jury, free to apportion liability between defendant Tindall and John Doe, found Doe to be 97% at fault for the accident. Since the jury awarded damages in the amount of $107,890, the trial judge entered judgment against defendant Tindall in the amount of $3,236.70 – 3% of the total award. Plaintiff, unhappy with the minor recovery against the only other named party, appealed.

In his appeal, plaintiff focused on the trial judge’s refusal to strike John Doe from the jury verdict sheet, thereby allowing the jury to apportion fault to an unknown party. Since “a fictitious party is not a party to a suit,” Bencivenga v. J.J.A.M.M., Inc., 258 N.J.Super. 399, 407 (App.Div.), certif. denied, 130 N.J. 598 (1992), the argument goes, and the trier of fact is to determine “each party’s negligence,” N.J.S.A. 2A:15-5.2(b), allowing the jury to apportion liability to a fictitious non-party was reversible error. The Appellate Division, in Krzykalski v. Tindall, 448 N.J.Super. 1 (App.Div. 2016), disagreed and affirmed the trial judge’s rulings. Plaintiff petitioned the New Jersey Supreme Court for certification.

To appreciate plaintiff’s argument, it is necessary to take a step back to examine the facts of Bencivenga, supra. In that case, a nightclub patron sued the club after he was punched in the face by an unknown patron. Id. at 402. Contrary to Krzykalski, the trial court refused to allow the jury to consider the John Doe defendant’s negligence. Ibid. The Appellate Division, on appeal, relied on policy grounds to affirm the trial court’s ruling: since the nightclub was more likely to know the assailant’s identity, it was forced to either identify him and mitigate its share of fault or bear the cost. Id. at 410. Plaintiff therefore argued the same policy considerations involving phantom patrons apply to phantom vehicles.

The New Jersey Supreme Court disagreed. In affirming the Appellate Division’s final judgment, the Supreme Court explicitly concluded that “’phantom vehicles’ driven by known but unidentified motorists that play a part in an accident presumptively may be allocated fault.” (19-20). Referring to Bencivenga as an exception to the general rule, the Court explained that a defendant driver is inherently in a different position than a commercial nightclub with patrons and invitees, and was not more likely than plaintiff to know John Doe’s identity in this case. (17, 20). As a result, the general rule applies, and the jury properly apportioned fault between defendant Tindall and John Doe. (21).

Thanks to Brent Bouma for his contribution to this post.  Please contact Tony Pinto for more information.