N.J. High Court Rules That Phantom Vehicles Can Be Allocated Fault

The New Jersey case of Mark R. Krzykalski v. David T. Tindall involves an auto accident where both the plaintiff and the defendant were in the left lane turning left through an intersection. An unidentified driver turned unexpectedly from the right lane, cutting off the vehicles in the left turn lane. Kryzkalski avoided hitting the vehicle in front of him but Tindall was unable to stop in time, and rearended Kryzkalski’s vehicle. Kryzkalski alleged he sustained serious injuries and filed an uninsured motorist (UM) claim against his auto insurer. He also sued Tindall and the unidentified driver (John Doe), citing negligence. Tindall’s answer asserted third party negligence as a defense and cross claims for indemnity and contribution from co-defendants. In addition, he demanded fault allocation against any defendants that settled before trial.

The court was requested to decide whether a jury can be asked to apportion fault among named defendants and unidentified defendants, also referred to as John Doe.

The UM carrier didn’t intervene in the lawsuit. The trial court included John Doe on the verdict sheet, despite plaintiff’s objections. The jury was instructed to allocate fault among the two defendants and each was found to be negligent. The jury assessed Tindall as three percent negligent for the accident, while John Doe was found to be 97 percent negligent.

Plaintiff appealed the trial court’s decision and the appellate court subsequently affirmed the decision.
After oral argument and review, the Supreme Court held that the underlying court jury “properly apportioned fault between defendant and the John Doe defendant because plaintiff and defendant acknowledged the role of John Doe in the accident, plaintiff’s UM carrier was aware of the litigation, and plaintiff had fair and timely notice that defendant would assert that John Doe was the cause of the accident.”

The Supreme Court pointed to New Jersey’s Comparative Negligence Act and the Joint Tortfeasors Contribution Law as the basis for their conclusion. According to the law, “joint tortfeasors” are “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.”

The law further states that “when multiple defendants have been found liable, the trier of fact shall determine “[t]he extent, in the form of a percentage, of each party’s negligence or fault.”

The law is clear that it doesn’t matter whether damages can be recovered, but rather on the evidence presented that supports liability of the negligent parties.

The high court noted that in New Jersey, a person can sue John Doe anytime an action exists against an individual, but no information exists on the identity of that individual.