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Allocation of Negligence as to Fictitious Defendant Permitted in Automobile Accident Lawsuit

By on May 18, 2018 in Negligence with 0 Comments

I had previously reported on the Appellate Division decision in Krzykalski v. Tindall, 448 N.J. Super. 1 (App. Div. 2016), in which the court upheld the trial court’s decision to allow the jury to allocate negligence between defendant David Tindall and the fictitiously named John Doe defendant in an automobile accident case. The New Jersey Supreme Court has now affirmed that decision in Krzykalski v. Tindall, 2018 N.J. LEXIS 484 (April 17, 2018).

The auto accident occurred on October 24, 2009 in Florence Township. Plaintiff’s vehicle and Tindall’s vehicle were both in the left lane when a vehicle driven by a fictitious John Doe cut in front of them and proceeded to make a left turn. Both plaintiff and Tindall braked. Plaintiff was able to stop without striking the vehicle in front of him but Tindall’s vehicle struck the rear of plaintiff’s vehicle.

The plaintiff suffered serious injuries in the accident and filed a UM claim against his auto insurance company. Plaintiff rejected his insurance company’s offer to settle the UM claim for the policy limits and sued defendant Tindall and John Doe for negligence.

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.

The Appellate Division disagreed, affirming the trial court’s decision. It concluded that an alleged tortfeasor does not need to be an identified party for his or her negligence and degree of responsibility to be considered by a jury. The Supreme Court granted certification, agreeing to hear plaintiff’s appeal of the Appellate Division decision.

The Supreme Court noted that the Comparative Negligence Act requires the allocation of fault “to defendants who may be responsible for the injury without regard to whether those defendants are, for other reasons, invulnerable to recovery by the plaintiff.” The question answered by the Court is how this principle is to be applied when a defendant is a known but unidentified John Doe defendant.

The Court found that the Legislature dealt with this scenario by requiring that auto insurance policies include a UM provision. Thus, phantom vehicles that are driven by known but unidentified motorists that play a part in an accident presumptively may be allocated fault in accordance with the Joint Tortfeasors Contribution Law, the Comparative Negligence Act, and the laws requiring UM coverage.

The ability to allocate fault to such defendants depends upon “fair and timely” notice of their intent to argue fault to the John Doe defendant. Here, plaintiff received such notice that defendant would assert that John Doe was the cause of the accident. Defendant’s third party negligence defense was set forth in the answer to the complaint. Further, Plaintiff’s UM carrier received notice of the litigation but chose not to intervene. Thus, the Court agreed with the trial court’s decision to submit the question of John Doe’s negligence to the jury for fault allocation.

Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.


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