Comparative Negligence of John Doe Defendant is Generally to be Considered in Apportioning Damages

Krzykalski v. Tindall, 448 N.J. Super. 1 (App. Div. 2016).  This was an auto accident case.  At trial, the jury was allowed to consider in the comparative negligence mix not only defendant’s negligence but that of a John Doe defendant whose driving had a role in the collision.  The jury found Doe 97% negligent and defendant only 3% negligent, resulting in a molded damage award to the first named plaintiff of just $3,236.70.  No damages were awarded to the other plaintiff, his ex-wife.  Plaintiffs appealed, but the Appellate Division affirmed in an opinion by Judge Fisher.

The main issue on appeal was the propriety of factoring in John Doe’s negligence.  Plaintiffs cited a prior Appellate Division case, Bencivenga v. J.J.A.M.M., Inc., 258 N.J. Super. 399 (App. Div. 1992), that said that “a fictitious party is not a party to a suit,” and juxtaposed that with N.J.S.A. 2A:15-5.2(b), a provision of the Comparative Negligence Act, that mandates that the trier of fact determine “[t]he extent, in the form of percentage, of each party’s negligence.”  Since John Doe, as a fictitious defendant, was not a party, it was error, plaintiffs contended, to consider his negligence.

Judge Fisher found that this argument “gives the appearance of some syllogistic logic,” but was ultimately unpersuasive.  “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.”  The law is best served, Judge Fisher said, “when the factfinder is allowed to evaluate the liability of all those potentially responsible.”  He cited other contexts in which those not strictly considered “parties,” such as settling defendants, have had their liability considered in the total mix.

The remaining issues were relatively simple.  Plaintiffs argued that the 97-3% allocation of negligence, the amount of damages awarded to the plaintiff ex-husband, and the zero damage award to the ex-wife, were all against the weight of the evidence.  Judge Fisher did not agree.  He cited the standard of Rule 4:49-1 that a new trial may be awarded only “if, having 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.”  The issues were all hotly disputed, and the jury, who saw the witnesses, reached a conclusion that did not “clearly appear” to be a miscarriage of justice.

Judge Fisher also quickly disposed of an evidence issue that plaintiffs raised.  Plaintiffs did not show where in the record this issue was presented.  They did not even identify the particular evidence in question.  The abuse of discretion standard applies to evidence rulings, and plaintiffs did not show any such abuse here.

To return to the allocation of negligence issue, which was undoubtedly the reason that this opinion was approved for publication, Judge Leone filed a concurring opinion.  He agreed that it was appropriate to include John Doe’s negligence in the balance, but for different reasons than those offered by Judge Fisher.  Judge Leone concluded that Bencivenga, the case that said that fictitious defendant was not a “party,” was no longer good law, but that assessing the negligence of a fictitious defendant was consistent with the Supreme Court’s analysis in Town of Kearny v. Brandt, 214 N.J. 76 (2013), which came after Bencivenga and was a decision of the highest Court.  Either way, John Doe’s negligence was properly considered, and plaintiffs’ appeal failed.

Finally, Judge Fisher noted that equitable circumstances might affect the decision whether to consider the negligence of a fictitious defendant.  He cited Bencivenga as an example of a case that did not include the fictitious defendant’s negligence in the calculation.  There, the defendant nightclub “was in the best position to identify the fictitious defendant, who was one of its bouncers,” and “it would have been inequitable to allow the nightclub to receive a potential benefit from its reticence.”  As is often the case, therefore, even in a strictly “legal” case, the equities may come into play.