Should a jury be allowed to allocate fault to an unidentified person named as a fictitious party as a joint tortfeasor?  Certainly a plaintiff who is unable to collect any award from an unknown party does not think so.  However, in the interest of justice, shouldn’t the respective fault of all tortfeasors be considered when a jury weighs each party’s fault?  In Krzykalski v. Tindall , the Appellate Division considered these issues and concluded that a jury should consider the fault of all potential tortfeasors when allocating fault.

The issue arose in the context of litigation for personal injuries from a motor vehicle accident. Therein, the plaintiff and the named defendant, Tindall, were traveling in the same lane on Route 130. They slowed for an emergency vehicle when a phantom driver, who had been in the right lane, cut off the plaintiff’s vehicle.  Although the plaintiff was able to stop in time, Tindall was not and rear-ended the plaintiff’s vehicle.

In his complaint, the plaintiff alleged he was injured as a result of the negligent operation of both cars.  However, in response to plaintiff’s pre-verdict motion, the judge rejected his request that “John Doe’s” negligence be kept from jury consideration. The jury apportioned liability between defendant Tindall (3%) and defendant John Doe (97%).

The Court found that the law is best served when the factfinder is allowed to evaluate the liability of all those potentially responsible.  For example, pursuant to the Comparative Negligence Act, a non-settling defendant has a right to have a jury apportion the liability of a settling defendant – once it has been proven at trial that the settling defendant was, in fact, negligent. Likewise, the comparative negligence of a phantom driver should also be considered by a jury in a trial brought by an injured party against another tortfeasor. See Cockerline v. Menendez, 411 N.J. Super. 596, 618-19 (App. Div. 2010), cert. denied, 201 N.J. 499 (2010).

Plaintiff argued that this case differs from the allocation made in the uninsured motorist context of Cockerline supra, where the UM carrier settled with the plaintiff prior to trial.  However, the Court did not find this distinction significant.  Rather, the court found that to preclude defendants from seeking an apportionment of liability against a phantom driver would frustrate the purpose of the joint tortfeasor and comparative fault law. In a concurring opinion, Judge Leone wrote, “Assessing the negligence of the fictitious driver prevents plaintiffs from strategically waiting to proceed against UM insurance, allocates fault based on actual negligence of the various drivers, and avoids double recovery by plaintiffs.”

Of course in order for any allocation to come into play, there must be sufficient evidence adduced at trial to allow the jury to consider the negligence of any party – fictitious or otherwise.  Thus, in order to seek allocation, defense counsel must be sure to introduce sufficient evidence to vault plaintiff’s argument against allocation.

Thanks to Ann Marie Murzin for her contribution.

For more information, contact Denise Fontana Ricci at .