NOT FOR PUBLICATION WITHOUT THE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,

Plaintiffs-Appellants,

v.

DAVID T. TINDALL,

Defendant-Respondent.

____________________________________________________

Submitted September 13, 2016 – Decided

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.

APPROVED FOR PUBLICATION

December 5, 2016

APPELLATE DIVISION

December 5, 2016
2 A-2539-14T3

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.
3 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.
4 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 UNIVERSITY 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).
5 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. 
6 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 
7 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 
8 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.
9 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).
10 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 
11 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 
12 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 
13 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 secondguessing the jury's determinations on damages.

Affirmed.
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 
2 A-2539-14T3

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 
3 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 nonsettling 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. 
4 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 
5 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).]
6 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.
7 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 
8 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. 
9 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.