Mark R. Krzykalski v. David T. Tindall

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2539-14T3
A-2774-14T3
MARK R. KRZYKALSKI and MICHELE
KRZYKALSKI, APPROVED FOR PUBLICATION
Plaintiffs-Appellants, December 5, 2016
APPELLATE DIVISION
v.
DAVID T. TINDALL,
Defendant-Respondent.
____________________________________________________
Submitted September 13, 2016 – Decided December 5, 2016
Before Judges Fisher, Leone and Vernoia
(Judge Leone concurring).
On appeal from the Superior Court of New
Jersey, Law Division, Burlington County,
Docket No. L-3048-11.
Law Offices of Robert F. Rupinski, attorneys
for appellant Michele Krzykalski (Robert F.
Rupinski, on the brief).
Andres & Berger, P.C., attorneys for
appellant Mark R. Krzykalski (Kenneth G.
Andres, Jr., of counsel; Abraham Tran, on
the brief).
Parker Young & Antinoff, attorneys for
respondent (Brad A. Parker, on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
Plaintiff Mark R. Krzykalski commenced this action,
alleging the negligence of both defendant David T. Tindall and a
John Doe in the operation of their vehicles that caused an
accident in which he was injured. In their separate appeals,
which we consolidated, plaintiff and his ex-wife, Michele,1 argue
the jury's award of damages was against the weight of the
evidence and constituted a miscarriage of justice; plaintiff
also contends, among other things, that the judge erred in
allowing the jury to apportion liability between defendant and
the fictitiously-named John Doe. We find no merit in their
arguments and affirm.
The auto accident in question occurred on October 24, 2009,
at the intersection of Hornberger Avenue and Route 130 in
Florence Township. Plaintiff's vehicle was in front of and in
the same lane as Tindall's vehicle on northbound Route 130; both
had slowed to allow an emergency vehicle enter onto Route 130
from Hornberger Avenue. Once their vehicles began to move
forward, a vehicle driven by the fictitious John Doe passed them
from the right lane of the northbound Route 130 lanes and
crossed their lane to make a left turn onto Hornberger Avenue.
1
Plaintiff Michele Krzykalski asserted a per quod claim for loss
of consortium and services. The evidence revealed the marriage
was troubled; they separated in June 2012 and later divorced.
2 A-2539-14T3
Both plaintiff and Tindall braked as a result of Doe's actions.
Plaintiff was able to stop without striking the vehicle in front
of him; Tindall's vehicle struck the rear of plaintiff's
vehicle.
By way of pre-verdict motions, the judge denied plaintiff a
directed verdict on liability against Tindall and also rejected
plaintiff's request that Doe's negligence, or the apportionment
of liability between Tindall and Doe, be kept from the jury.
The jury found both Tindall and Doe negligent, and found Tindall
three percent and Doe ninety-seven percent responsible for
plaintiff's injuries. Damages were awarded in plaintiff's favor
in the amount of $107,8902; no damages were awarded to Michele.
In molding the verdict, the judge entered judgment in favor of
plaintiff and against Tindall in the amount of $3,236.70. Later
motions for a new trial or additur were denied.
Both plaintiff and Michele appealed. Plaintiff argues:
I. THE TRIAL COURT REVERSIBLY ERRED BY
DENYING PLAINTIFF['S] MOTION FOR A DIRECTED
VERDICT ON LIABILITY AS TO DEFENDANT
TINDALL, AND THE LIABILITY VERDICT OF 97% AS
TO THE PHANTOM JOHN DOE, AND 3% AS TO
DEFENDANT TINDALL, WHO REAR-ENDED
PLAINTIFF'S STOPPED VEHICLE, IS A
MISCARRIAGE OF JUSTICE.
2
$91,250 in pain and suffering, disability and impairment, loss
of enjoyment of life, and other non-economic losses, and $16,640
in lost past wages.
3 A-2539-14T3
II. THE TRIAL COURT REVERSIBLY ERRED IN
PLACING THE PHANTOM "JOHN DOE" ON THE JURY
VERDICT SHEET.
III. THE TRIAL COURT REVERSIBLY ERRED IN
BARRING PLAINTIFF['S] THOMAS JEFFERSON UNI-
VERSITY HOSPITAL RECORDS FROM EVIDENCE.
IV. THE TRIAL COURT REVERSIBLY ERRED IN
PERMITTING DEFENDANT TO PRESENT TESTIMONY
AND ARGUE THAT PLAINTIFF['S] INJURIES WERE
CAUSED BY HIS RIDING A ROLLER COASTER.
V. THE DAMAGE VERDICT AS TO PLAINTIFF . . .
IN THE AMOUNT OF $91,250.00 FOR PAIN AND
SUFFERING, DISABILITY AND IMPAIRMENT, AND
LOSS OF ENJOYMENT OF LIFE, DESPITE THE FACT
THAT EVERY DOCTOR TESTIFIED PLAINTIFF HAD
PERMANENT RESIDUAL BRAIN DAMAGE AND
PERMANENT PARTIAL VISION LOSS, AND DEFENDANT
STIPULATED THAT PLAINTIFF HAD INJURIES WHICH
PIERCED THE LIMITATION ON LAWSUIT THRESHOLD,
IS A MISCARRIAGE OF JUSTICE.
A. Plaintiff is Entitled to a New
Trial, in Light of the Extent of
Plaintiff['s] Injuries.
B. The Damage Verdict as to
Plaintiff . . . in the Amount of
$91,250.00 was a Miscarriage of
Justice and Shocking to the
Conscience, and a New Trial Should
be Granted Pursuant to He v.
Miller.3
VI. THE DAMAGE VERDICT AS TO PLAINTIFF . . .
IN THE AMOUNT OF $16,540.00 FOR PAST LOST
WAGES AND $0 FOR FUTURE LOST WAGES, ALTHOUGH
THE EVIDENCE DEMONSTRATED THAT [PLAINTIFF'S]
PAST AND FUTURE LOST WAGES AMOUNTED TO
3
During the pendency of this appeal, the Supreme Court rejected
many aspects of its earlier holding in He v. Miller, 207 N.J.
230 (2011). See Cuevas v. Wentworth, 226 N.J. 480 (2016).
4 A-2539-14T3
$350,000 AND $1,554,800.00, RESPECTIVELY, IS
A MISCARRIAGE OF JUSTICE.
VII. THE DAMAGE VERDICT OF ZERO AS TO
PLAINTIFF MICHELLE KRZYKALSKI FOR HER PER
QUOD CLAIM, DESPITE THE EVIDENCE SHOWING
THAT [PLAINTIFF'S] INJURIES DESTROYED THEIR
FAMILY, IS A MISCARRIAGE OF JUSTICE AND
REFLECTS THE TRAVESTY OF THE ENTIRE VERDICT.
Michele argues, in a single point, that the jury's decision to
award her nothing was against the weight of the evidence and
represented a miscarriage of justice.
We turn first to whether the trial judge properly permitted
the jury's consideration and apportionment of John Doe's
liability, as well as whether the jury's verdict that Tindall
was only three percent responsible was against the weight of the
evidence.4 Thereafter, we briefly examine the arguments
concerning the jury's award of damages.
I
In urging our reliance on statements in our case law that
"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.) (emphasis
added), certif. denied, 130 N.J. 598 (1992), and the statutory
4
We find insufficient merit in plaintiff's argument in his Point
I that the judge erred in denying his motion for a directed
verdict on Tindall's negligence to warrant discussion in a
written opinion, R. 2:11-3(e)(1)(E), because the jury in fact
found Tindall negligent.
5 A-2539-14T3
direction that the trier of fact determine "[t]he extent, in the
form of percentage, of each party's negligence," N.J.S.A. 2A:15-
5.2(b) (emphasis added), plaintiff contends that the trial judge
erred in directing the jury to determine whether John Doe was
negligent and, if so, the percentage to which he was
responsible. Although it gives the appearance of some
syllogistic logic, we do not find this argument persuasive.
Consideration of an alleged tortfeasor's negligence and
degree of responsibility 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." See Ramos v.
Browning Ferris Indus. of S. Jersey, Inc., 194 N.J. Super. 96,
106 (App. Div. 1984), rev’d on other grounds, 103 N.J. 177
(1986). The law is best served, as the Court observed in Town
of Kearny v. Brandt, 214 N.J. 76, 102 (2013), when the
factfinder is allowed to evaluate the liability of all those
potentially responsible. So, although, for example, an employer
insulated by workers compensation laws will not have its
responsibility apportioned, Ramos, supra, 103 N.J. at 184, other
tortfeasors, such as those who have sought or obtained the
protection of bankruptcy laws, and therefore are no longer
answerable in damages, should nevertheless be considered,
Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 115 (2004); see
6 A-2539-14T3
also Town of Kearny, supra, 214 N.J. at 103 (providing other
examples of tortfeasors whose liability was considered and
apportioned despite plaintiff's inability to recover from them
in whole or in part).
Because the Comparative Negligence Act would be disserved
by exalting the "party" label in adjudicating responsibility for
a plaintiff's claim, we have recognized that 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. See Green v. Gen.
Motors Corp., 310 N.J. Super. 507, 545-46 (App. Div.), certif.
denied, 156 N.J. 381 (1998); Mort v. Besser Co., 287 N.J. Super.
423, 431 (App. Div. 1996), certif. denied, 147 N.J. 577 (1997).
Consequently, we have held that the comparative negligence of a
phantom driver, such as John Doe here, should 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.), certif. denied, 201 N.J. 499 (2010).
Plaintiff argues this case differs from Cockerline because
in that case a uninsured motorist (UM) carrier standing in the
shoes of the fictitious driver settled with plaintiff prior to
trial and, here, the proceedings between plaintiff and his UM
7 A-2539-14T3
insurer have yet to be resolved.5 Despite that factual
difference, however, there remains in both instances a need to
apportion responsibility between the two tortfeasors. In short,
if plaintiff and the UM insurer had settled prior to 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."
Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 569 (1980).
We see no distinction worthy of creating a different rule and
drawing a different conclusion where the plaintiff and the UM
insurer have not yet litigated their disputes. To allow
plaintiff to obtain from Tindall the full amount of damages
assessed by the jury and, later, seek recovery from the UM
carrier, could result in a windfall, contrary to our prior
holdings. As we said in Cockerline, "to preclude defendants from
seeking an apportionment of liability against the phantom
vehicles does not advance the purposes of the UM law and
frustrates the purposes of the joint tortfeasor and comparative
fault law." 411 N.J. Super. at 619. We, thus, reject
plaintiff's contention that, because John Doe may not be labeled
5
According to the parties' submissions, plaintiff previously
refused his UM carrier's offer of the policy limits both before
and during trial, leaving that matter to be determined upon an
eventual demand for UM arbitration.
8 A-2539-14T3
a "party," his negligence should not have been apportioned by
the jury.6
We also reject plaintiff's argument that the jury's finding
that John Doe was ninety-seven percent responsible and Tindall
only three percent responsible was against the weight of the
evidence. Plaintiff chiefly relies on Dolson v. Anastasia, 55
N.J. 2, 10-12 (1969), which held that a new trial was required
when a jury failed to find defendant negligent when his vehicle
struck plaintiff's vehicle from the rear. Contrary to what
required a new trial in Dolson, the jury here found Tindall
negligent and his negligence a proximate cause of plaintiff's
injuries. The question posed here -- in the context of the
trial judge's denial of a motion for a new trial on this point -
6
It may, at first blush, appear that our holding today and, for
that matter, our holding in Cockerline, are inconsistent with
our earlier decision in Bencivenga, where we upheld a decision
not to submit a fictitious defendant's liability to the
factfinder for apportionment. Such an assumption would be
mistaken. In deciding Bencivenga, we were persuaded that the
defendant nightclub was in the best position to identify the
fictitious defendant, who was one of its bouncers, and that it
would have been inequitable to allow the nightclub to receive a
potential benefit from its reticence. 258 N.J. Super. at 410.
Similarly, our holdings here and in Cockerline also provide a
more equitable result. See also Kranz v. Schuss, __ N.J. Super.
__, __ (App. Div. 2016) (slip op. at 20) (holding that the only
"equitable result" in this New Jersey suit – where an earlier
New York suit against a New York defendant – was to have the New
Jersey jury assign and allocate the fault of both the New Jersey
defendant and the New York tortfeasor, even though the New York
tortfeasor could never be a "party" to the New Jersey suit due
to lack of personal jurisdiction).
9 A-2539-14T3
- simply concerns whether the jury's apportioning of
responsibility between two tortfeasors was against the weight of
the evidence.
A judge shall grant a motion for a new trial "if, having
given due regard to the opportunity of the jury to pass upon the
credibility of the witnesses, it clearly and convincingly
appears that there was a miscarriage of justice under the law."
R. 4:49-1(a). In applying this standard, the judge must evaluate
the evidence with an eye toward correcting "clear error or
mistake by the jury." Dolson, supra, 55 N.J. at 6. The judge is
to "take into account, not only tangible factors relative to the
proofs as shown by the record, but also appropriate matters of
credibility, generally peculiarly within the jury's domain, and
the intangible 'feel of the case' which it has gained by
presiding over the trial." Kita v. Borough of Lindenwold, 305
N.J. Super. 43, 49 (App. Div. 1997). Even then, we will not
reverse the judge's ruling on the motion unless "it clearly
appears that there was a miscarriage of justice under the law."
R. 2:10-1.
In ruling on the motion for a new trial, the judge
correctly observed that the jury was faced with the consequence
of two negligent acts committed by two separate individuals.
Tindall failed to keep sufficient distance from plaintiff's
10 A-2539-14T3
vehicle to avoid striking it from behind, and John Doe cut off
plaintiff's vehicle, Tindall's vehicle, and others, by crossing
the northbound lanes to make a left turn off the roadway. The
degree of responsibility between these two tortfeasors presented
a fact-sensitive question for the jury. In the jurors' eyes,
John Doe was far more blameworthy than Tindall. And the trial
judge observed the witnesses, and gained a feel of the case,
found no miscarriage of justice in what the jury concluded.
After close examination of the record in light of our standard
of review, we cannot conclude that it "clearly appears" the
verdict was "a miscarriage of justice." R. 2:10-1.
II
We find insufficient merit in plaintiff's contention that
the jury's award of damages, either separately or collectively
examined, constituted a miscarriage of justice to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). We come
to the same conclusion with regard to Michelle's contention that
the jury's verdict on her claim for damages also constituted a
miscarriage of justice. We add only the following few brief
comments.
In his third point, plaintiff argues the trial judge erred
in barring admission of plaintiff's Thomas Jefferson University
Hospital records. In his brief, plaintiff did not refer us to
11 A-2539-14T3
where in the record this ruling was made and he did not identify
the particular records in question. Based on our own review of
the record, we assume plaintiff refers in this point to hospital
records he offered into evidence for the first time shortly
before summations. The record suggests that although medical
experts may have either alluded to or based their opinions on
their review of some hospital records, Tindall objected because
there were things mentioned in the records in question that had
not been addressed by any witness. The judge sustained that
objection.
We find no abuse of discretion in the judge's ruling. To
the extent the records contained information not previously
mentioned by a witness, the judge correctly excluded them. And
to the extent they were offered to corroborate an expert's
testimony, their exclusion was harmless.
Lastly, we reject the arguments of both plaintiff and his
ex-wife that the verdict on damages was against the weight of
the evidence and represented a miscarriage of justice. To be
sure, plaintiff has advocated his injuries were extensive and
that the jury was mistaken in rendering an award far short of
what he believes is fair and just. The fact of the matter is,
however, that the extent and significance of plaintiff's
injuries was much in dispute, and the jury was entitled to
12 A-2539-14T3
exercise its judgment in crediting or rejecting plaintiff's
claims. By the same token, the jury's decision to award nothing
to Michele likely was based in part on its view that plaintiff
was not injured as severely as he claimed. Also, Michele took
on no additional responsibilities due to the accident and, with
the deterioration of their marriage that started prior to the
accident, she incurred no loss as a result of the accident. We
have been presented with no principled reason for second-
guessing the jury's determinations on damages.
Affirmed.
13 A-2539-14T3
LEONE, J.A.D., concurring.
I concur in the result reached by my colleagues but write
separately to explain why, in my view, that result hews to the
statute and the governing precedent of our Supreme Court because
a fictitious party is a "party" under the Comparative Negligence
Act ("Act"). N.J.S.A. 2A:15-5.1 to -5.8.
The Act provides that the trier of fact shall determine
"[t]he extent, in the form of a percentage, of each party's
negligence or fault. The percentage of negligence or fault of
each party shall be based on 100% and the total of all
percentages of negligence or fault of all the parties to a suit
shall be 100%." N.J.S.A. 2A:15-5.2(a)(2) (emphasis added).
Our Supreme Court has held that the Act "restricts the
assessment of negligence to 'the parties to [the] suit.'" Ramos
v. Browning Ferris Indus., Inc., 103 N.J. 177, 193 (1986) [Ramos
II] (quoting N.J.S.A. 2A:15-5.2(b) (1973)). In Ramos II, the
Court found that once an employer, immune under the Workers'
Compensation Act, "obtain[ed] its summary judgment of dismissal,
[it] was no longer a party to the suit, and the trial court
correctly decided not to submit [its] negligence to the jury."
Ibid.
Subsequent to Ramos II, the Court allowed the assessment of
the negligence of parties who could not be held liable for
reasons other than immunity. Town of Kearny v. Brandt, 214 N.J.
76, 83 (2013) (holding that "when the claims against a defendant
are dismissed on statute of repose grounds, fault may be
apportioned to the dismissed defendant under the Comparative
Negligence Act"); Brodsky v. Grinnell Haulers, Inc., 181 N.J.
102, 116 (2004) (holding that fault may be apportioned to "a
joint tortfeasor whose case is dismissed before trial because of
a bankruptcy discharge"); Young v. Latta, 123 N.J. 584, 596-97
(1991) (holding that a non-settling defendant may obtain an
allocation of fault to a settling defendant).
In those cases, the Court distinguished Ramos II because
"no cause of action in tort against the employer ever arose" as
the employer was completely immune and thus "not a 'party'
within the meaning of N.J.S.A. 2A:15-5.2." Brandt, supra, 214
N.J. at 99, 103; see Brodsky, supra, 181 N.J. at 115 ("an
employer cannot be a party to a negligence action"). The Court
reaffirmed that allocation of negligence was only available
against a "party" within the meaning of the Act. See Brandt,
supra, 214 N.J. at 98 ("the terms 'each party' and 'all the
parties to a suit,' as used in the Comparative Negligence Act,
encompass defendants who have been granted dismissals pursuant
to the statute of repose" (citation omitted)); Brodsky, supra,
181 N.J. at 110 ("a defendant who has been dismissed from a case
2 A-2539-14T3
as a result of a bankruptcy discharge is still a 'party' to whom
a percentage of fault may be allocated"); see also Brandt,
supra, 214 N.J. at 100 ("[Young] implicitly recognized 'that a
defendant who settles and is dismissed from the action remains a
"party" to the case for the purpose of determining the non-
settling defendant's percentage of fault'" (quoting Brodsky,
supra, 181 N.J. at 113)).
Thus, the issue before us is whether an unidentified person
named as a fictitious party is a "party" within the meaning of
the Act. In Bencivenga v. J.J.A.M.M., Inc., 258 N.J. Super. 399
(App. Div.), certif. denied, 130 N.J. 598 (1992), we correctly
recognized that the Act addresses "apportioning negligence among
parties to the lawsuit." Id. at 411; see Steele v. Kerrigan,
148 N.J. 1, 33 (1997) (noting "with approval the holding in
Bencivenga, supra, that the obligation to apportion fault
applies only to tortfeasors that are defendants in the
litigation"). However, Bencivenga, supra, then ruled that "the
plain and ordinary meaning of the statutory language precludes
inclusion of a fictitiously named tortfeasor from the Act's
commands for apportioning fault." 258 N.J. Super. at 406. The
rationales for that ruling are flawed and out of step with
subsequent Supreme Court cases.
3 A-2539-14T3
First, Bencivenga cited the language in N.J.S.A. 2A:15-5.1
providing that contributory negligence does not bar recovery if
it "was not greater than the combined negligence of the persons
against whom recovery is sought." Bencivenga, supra, 258 N.J.
Super. at 406. We then reasoned that "[a] fictitious person is
not someone against whom recovery can be sought because the
fictitious person rule, R. 4:26-4, and due process prevent entry
of judgment against a person designated by a fictitious name."
Id. at 406-07. However, a fictitious defendant literally is a
person against whom recovery is sought. It is true that
recovery cannot be obtained until the fictitious party is
identified and served. However, subsequent to Bencivenga, our
Supreme Court in Brodsky and Brandt permitted allocation of the
negligence of parties against whom recovery could not be
obtained. In any event, N.J.S.A. 2A:15-5.1 addresses
contributory negligence, not comparative negligence.
Second, Bencivenga, supra, reasoned that "a fictitious
person is not a party to a suit. The person plaintiff
identifies as a fictitious defendant only becomes a party to the
suit when the defendant's true name is substituted in an amended
complaint and service is effected." 258 N.J. Super. at 407.
However, a fictitious defendant is listed as a party in the
complaint, and "process may issue against the defendant under a
4 A-2539-14T3
fictitious name." R. 4:26-4. Bencivenga cited Farrell v.
Votator Division of Chemetron Corp., 62 N.J. 111, 120 (1973),
but Farrell ruled that substituting a fictitious defendant's
true name was not the addition of "a new party" but the renaming
of the existing fictitious party. Ibid.; see Stegmeier v. St.
Elizabeth Hosp., 239 N.J. Super. 475, 484 (App. Div. 1990).
Third, Bencivenga stated its "result is supported by our
holding in Ramos v. Browning Ferris Ind. of So. Jersey, Inc.,
194 N.J. Super. 96 (App. Div. 1984) [Ramos I], rev'd on other
grounds, 103 N.J. 177 (1986) [Ramos II]." Bencivenga, supra,
258 N.J. Super. at 407. Bencivenga quoted Ramos I's reasoning
that "[a] truer verdict is more likely to be returned where the
fact finder's attention is ultimately fixed on the conduct of
the parties who will be affected by the verdict." Ibid.
(quoting Ramos I, supra, 194 N.J. Super. at 106).
[T]here is no more reason to have a fact
finder assign a percentage of negligence to
someone who is not affected by the verdict
than to assign a percentage of negligence to
acts of God (such as the snow in this case)
or a myriad of other causative factors that
may have contributed to the happening of an
accident.
[Ibid. (emphasis added) (quoting Ramos I,
supra, 194 N.J. Super. at 106).]
5 A-2539-14T3
However, our "affected by the verdict" test in Ramos I was
not adopted by our Supreme Court in Ramos II.1 Moreover,
subsequent to Bencivenga, the Court in Brodsky and Brandt
permitted allocation of the negligence of parties who would not
be affected by the verdict, such as defendants protected by
bankruptcy or the statute of repose.
Thus, it appears Bencivenga is no longer good law on
whether apportionment of negligence is possible from a party
from whom recovery is not currently possible. While Brandt
mentioned Bencivenga in describing how "[t]he Appellate Division
has also considered the issue of apportionment in several
settings," Brandt did not involve fictitious defendants.
Brandt, supra, 214 N.J. at 101-02, 103. Thus, we do not read
Brandt as adopting the holding in Bencivenga barring the
assessment of negligence of fictitious parties. Indeed, the
Court in Brandt announced four "guiding principles" for the
assessment of negligence, which support assessing the negligence
of a fictitious party. Id. at 102–03.
1
Ramos II, supra, did agree that "other causes, such as the snow
that fell on the ground, might have contributed to the happening
of the accident, yet the degree of fault to be attributed to
those additional causes was not submitted to the jury." 103
N.J. at 193 (citing Ramos I, supra, 194 N.J. Super. at 106).
Unlike snow and other acts of God, however, a fictitious driver
can be sued, may be liable, and should be considered in
assessing the comparative negligence of the persons who
contributed to causing an accident.
6 A-2539-14T3
"First, the Comparative Negligence Act and the Joint
Tortfeasors Contribution Law promote 'the distribution of loss
"in proportion to the respective faults of the parties causing
that loss."'" Id. at 102 (quoting Brodsky, supra, 181 N.J. at
114). "Given the impact of a defendant's percentage of fault on
the scope of its liability, the statutes' objectives are best
served when the factfinder evaluates the fault of all
potentially responsible parties." Ibid. That principle plainly
supports assessing the negligence of a fictitious party who
helped cause the loss and is potentially responsible. Absent
allocation of negligence of the fictitious party, "a defendant
who is found to be one percent negligent would be held
responsible for ninety-nine percent of the negligence caused by
a joint tortfeasor." See Brodsky, supra, 181 N.J. at 116. The
Court "decline[d] to follow th[at] approach," and we should
likewise decline to impose 100% liability on defendant though
the jury found him only 3% liable and the fictitious driver 97%
liable. See ibid.
"Second, our courts have barred apportionment where, as a
matter of law, defendant could not under any circumstances be a
joint tortfeasor under N.J.S.A. 2A:53A-2." Brandt, supra, 214
N.J. at 102. Unlike the employer "immunized from any action in
tort" in Ramos II, a fictitious party could be a joint
7 A-2539-14T3
tortfeasor under N.J.S.A. 2A:53A-2 if identified and served.
See ibid.2
"Third, apportionment of fault under the Comparative
Negligence Act and the Joint Tortfeasors Contribution Law does
not turn on whether the plaintiff is in a position to recover
damages from the defendant at issue." Id. at 103. Thus, the
apportionment of negligence of a fictitious party is not
precluded because the plaintiff will not be in a position to
recover damages until it identifies and serves that party.
"Fourth, a claimant's failure to conform to a statutory
requirement for asserting claims against a given defendant does
not necessarily bar apportionment of that defendant's fault at
trial." Ibid. There is no statutory bar against asserting a
claim against a fictitious defendant; indeed, it is permitted by
Rule 4:26-4.
Thus, assessing the negligence of a fictitious party is
consistent with all four guiding principles articulated by our
Supreme Court in Brandt. "Applied here, these principles
require that we affirm the [Law] Division's decision on the
2
For purposes of N.J.S.A. 2A:53A-2, "the term 'joint
tortfeasors' means two or more persons jointly or severally
liable in tort for the same injury to person or property,
whether or not judgment has been recovered against all or some
of them." N.J.S.A. 2A:53A-1.
8 A-2539-14T3
issue of apportionment." See Brandt, supra, 21 N.J. at 103.
"The goals of our comparative fault statutory scheme are
advanced if the jury assesses the [fictitious] defendant['s]
potential fault in this case" because such assessment "promotes
fair allocation of responsibility and avoids creating an
incentive for a plaintiff to strategically target only one of a
range of culpable defendants." See id. at 104.
Indeed, as the majority opinion points out, plaintiffs have
the ability to indirectly obtain a measure of compensation based
on the negligence of the fictitious driver through uninsured
motorist (UM) insurance, but chose not to complete that process
before going to trial against defendant. Cf. Cockerline v.
Menendez, 411 N.J. Super. 596, 617-19 (App. Div. 2010)
(approving apportionment of negligence of a fictitious driver
after the plaintiff recovered for his negligence under UM
insurance). 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.
For these reasons, the trial court's apportionment of
negligence was proper and should be affirmed.
9 A-2539-14T3