Allocation of Negligence as to Fictitious Defendant Permitted in Personal Injury Action

Plaintiff Mark Krzykalski sued defendants David Tindall and a John Doe, alleging negligence in the operation of their vehicles that caused an accident in which he was injured. At trial, the judge allowed the jury to allocate negligence between defendant Tindall and the fictitiously named John Doe. In the published decision of Krzykalski v. Tindall, 2016 N.J. Super. LEXIS 149 (App. Div. Dec. 5, 2016), the plaintiff appealed this determination to the Appellate Division.

The auto accident occurred on October 24, 2009 at the intersection of Hornberger Avenue and Route 130 in Florence Township. Plaintiff’s vehicle and Tindall’s vehicle were both in the same lane and had slowed to allow an emergency vehicle to enter onto Route 130 from Hornberger Avenue. As they were beginning to move forward, a vehicle driven by a fictitious John Doe passed them, cut in front of them, and crossed their lane to make a left turn onto Hornberger Avenue. Both plaintiff and Tindall braked but plaintiff was unable to stop without striking the vehicle in front of him and Tindall’s vehicle struck the rear of plaintiff’s vehicle.

At trial, plaintiff requested that the John Doe’s negligence be kept from the jury, which motion the judge denied. The jury found Tindall 3% negligent and John Doe 97% negligent for plaintiff’s injuries. On appeal, plaintiff argued that the phantom “John Doe” should not have been placed on the verdict sheet.

Plaintiff contended that a fictitious defendant is not a party to a suit and, hence, the statutory direction that the trier of fact determine “the extent, in the form of percentage of each party’s negligence” is inapplicable to a John Doe defendant. The Appellate Division disagreed, noting that prior case law has held that the consideration of a tortfeasor’s negligence “is not governed by whether that tortfeasor may be said to be a party but turns on whether the other tortfeasor will be affected by the verdict.” The factfinder should be allowed to evaluate the liability of all those potentially responsible.

A nonsettling defendant has a right to have a jury apportion the liability of a settling defendant once it is proven at trial that the settling defendant was negligent. Consequently, the Appellate Division noted that the comparative negligence of a phantom driver, such as a John Doe as in this case, should be considered by a jury in a trial brought by an injured party against another tortfeasor.

The plaintiff tried to distinguish prior case law on the basis that, in this case, no settlement had yet been reached on plaintiff’s uninsured motorist claim against the phantom driver. The Appellate Division rejected that argument.

The Court found no difference between cases in which an uninsured motorist claim had settled before trial or was still pending. In both instances, there remained a need to allocate responsibility between the two tortfeasors. If plaintiff and Tindall had settled before trial, apportionment would be required because Tindall, the remaining defendant, would be “chargeable with the total verdict less that attributable to the settling defendant’s percentage share.” The court found no reason to create a different rule in a situation in which no settlement had yet been reached with the UM carrier. Otherwise, the plaintiff would be able to obtain the full amount of his damages from Tindall and then seek recovery from the UM carrier, which could result in a windfall.

Thus, the Appellate Division upheld the trial court’s ruling, permitting an apportionment of negligence between Tindall and the John Doe fictitious defendant.

Tags: personal injury, settlement