It is not uncommon for lawsuits to include fictitious defendants, usually identified as John Doe or Jane Doe. When the identity of the fictitious defendant is discovered, the complaint is amended to include the real name of the party. But what happens when a case goes all the way to trial with John Doe alongside actual, real life defendants, and the jury concludes that Mr. Doe was almost entirely responsible for the accident that was the subject of the lawsuit? This is exactly what happened in Krzykalski v. Tindall.

In Krzykalski, plaintiff was driving his car in front of defendant's car. Both slowed down to allow an emergency vehicle to enter the road. When they started up again, a third car, driven by an unknown driver, passed both of them on the right and cut in front of them to make a left turn. Plaintiff was able to avoid hitting the unknown driver, but defendant rear ended plaintiff. Plaintiff sued both drivers, one by name and one as "John Doe." At trial, the jury found both defendants liable, but apportioned 97% of the responsibility to John Doe. Therefore, only about $3,000 of the jury's $107,890 verdict in plaintiff's favor was attributable to the named defendant.

Plaintiff appealed, arguing that the jury should not have been able to consider, much less apportion, John Doe's liability. He argued that (1) under New Jersey's Comparative Negligence Act, a jury is only allowed to apportion liability between defendants based on each "party's" negligence, but (2) New Jersey courts have held that a fictitious defendant is not a "party" to a lawsuit, therefore (3) a jury cannot apportion any liability to a fictitious defendant. The Appellate Division held that this argument had "the appearance of some syllogistic logic," but, unfortunately for plaintiff, did not find it persuasive.

The Appellate Division held that whether, and to what extent, a defendant is negligent 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." It held that the Comparative Negligence Act would be "disserved by exalting the 'party' label in adjudicating responsibility for a plaintiff's claim." Ultimately, the Appellate Division concluded that the Comparative Negligence Act is "best served . . . when the factfinder is allowed to evaluate the liability of all those potentially responsible." The interesting part of this decision was not the majority opinion, however, but the concurring opinion of one member of the three-judge panel.

Judge Leone wrote separately, suggesting that a fictitious defendant should be considered a "party" under the Comparative Negligence Act. He began his opinion with a discussion of Ramos v. Browning Ferris Indus., Inc. In that case, an employee sued his employer after he was injured on the job. The employer moved for summary judgment, arguing that it was immune from liability because all of plaintiff's damages were covered by the Workers' Compensation Act. The court agreed and held that, in light of this immunity, the employer's negligence should not have been submitted to the jury. From this decision comes the often cited principle that the Comparative Negligence Act "restricts the assessment of negligence to the parties to the suit."

Judge Leone noted, however, that New Jersey courts have, since Ramos, allowed the apportionment of liability to defendants who are no longer "parties" to the lawsuit when the case is submitted to the jury. For example, juries have been allowed to consider the comparative negligence of defendants who file for bankruptcy protection and defendants who are protected by the statute of repose. Judge Leone likened fictitious defendants to these defendants. He observed that a fictitious defendant is, like these defendants, "literally [ ] a person against whom recovery is sought," but from whom recovery is not currently possible. Accordingly, Judge Leone suggested that, like these defendants, fictitious defendants should be considered "parties" for purpose of the Comparative Negligence Act.

Judge Leone was essentially suggesting that the holding of Ramos -- that the Comparative Negligence Act "restricts the assessment of negligence to the parties to the suit" -- is limited by the facts of that case. Stated differently, subsequent case law suggests that this holding is the exception, not the rule. Maybe, based on this case law, the rule actually is that the Comparative Negligence Act applies to all defendants, fictitious or otherwise, except those immune from liability. It remains to be seen whether the Supreme Court will weigh in on this issue and, if it does, whether it will adopt Judge Leone's approach.