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NJ Law Review Update

New Jersey Supreme Court Says a Jury Can Apportion Fault Between Actual and Phantom Defendants

The New Jersey Supreme Court in the case of Krzykalski v. David Tindall and John Doe ruled that in an automobile case brought under New Jersey Comparative Negligence Act a jury can be asked to apportion fault between a named party defendant and a known but unidentified defendant. The defendant Tindall was traveling behind plaintiff when John Doe unexpectedly made a left turn cutting off both cars in the left lane. Plaintiff was able to stop his car without striking the vehicle in front of him. The defendant was unable to stop in time and rear-ended the plaintiff’s vehicle.
The plaintiff filed a claim for uninsured motorist benefits with his auto carrier, rejected its offer to settle and sued Tindall and John Doe for negligence. The case proceeded to trial and the jury found that the John Doe defendant was 97% negligent.

The Supreme Court rejected plaintiff’s argument that the jury should not be permitted to apportion fault between the defendant and an unidentified party who is not represented by counsel. The unidentified or phantom vehicle was not a true party to the case under the comparative negligence act
and allowing fault allocation resulted in a miscarriage of justice. For his part the defendant argued that allocation was proper because the Comparative Negligence Act was to promote fair sharing of the burden of a judgment and that each tortfeasor should pay damages in accordance with the percentage of fault attributed to it by the factfinder.

The Supreme Court explained that the Comparative Negligence Act requires allocation of fault to defendants responsible for plaintiff’s injuries without regard to whether those defendants are invulnerable to recovery by the plaintiff. The Court decided that fault could be allocated to John Doe, the phantom vehicle, given that John Doe’s role in the accident had been acknowledged. It rejected the idea that John Doe was a fictitious person who was not named nor could never be named and therefore could never be a true party under the Comparative Negligence Act. John Doe was known but not identified and the parties acknowledged the role that John Doe played in causing the accident. The Court also decided that John Doe’s party status under the Comparative Negligence Act did not mean that the UM carrier that would ultimately cover any damages attributed to John Doe had to intervene in the case and formally become a party to the negligence suit. The Court rules that because it was the plaintiff’s UM carrier that was responsible for the damages caused by the John Doe there was no reason to require its participation in the litigation where it had chosen not to do so.

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