New Jersey Supreme Court Says Fault Can Be Assigned to an Unknown Driver, UM Carrier On the Hook
Krzykalski v. Tindall, 232 N.J. 525 (2018)
Case decided: April 17, 2018
Case Available here.
Article By: Noah Gradofsky, Esq.
April 18, 2018


In a decision with broad implications for uninsured motorist coverage as well as possibly, tort and subrogation litigation in general as well, The New Jersey Supreme Court published an opinion today that allowed a jury’s allocation of fault to an unknown driver.

In Krzykalski v. Tindall, 232 N.J. 525 (2018) an unknown driver made a left turn in front of Plaintiff, causing Plaintiff to stop short and subsequently be rear-ended by Tindall. The Jury found Tindall 3% at fault and the unknown driver 97% at fault. Plaintiff argued that the unknown tortfeasor, who was named as a “John Doe” Defendant in the suit, was not a real party to the case and hence the only other Defendant, Tindall, should have been found 100% liable.

The Court disagreed with Plaintiff’s arguments, explaining that New Jersey’s Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8 (CNA) generally requires the jury to fairly apportion fault among all tortfeasors and for each tortfeasor not to pay more than its fair share of the fault (except that a Plaintiff may recover 100% of its damages from a tortfeasor found to be 60% or more at fault, per N.J.S.A. 2A:15-5.3(a)).

The Court noted that when a jury apportions fault it should generally include unknown parties, parties lacking sufficient assets, and parties who would not be required to satisfy a judgment, such as parties who settled with the Plaintiff (per Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 569 (1980)), public entities who were dismissed from a case because a tort claims notice had not been filed (per Jones v. Morey's Pier, Inc., 230 N.J. 142, 165 (2017), a bankrupt tortfeasor (per Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 108 (2004), or a Doctor whose malpractice claim was dismissed for failure to properly file an affidavit of merit (per Burt v. W.Jersey Health Sys., 339 N.J. Super. 296, 305 (App. Div. 2001). The only parties not to be included are parties that are immune from liability, such as an employer who is immunized by the worker’s compensation act. See Ramos v. Browning Ferris Industries of South Jersey, Inc., 194 N.J. Super. 96, 101, 105 (App. Div. 1984), rev'd on other grounds, 103 N.J. 177 (1986).

Most significantly, the Court distinguished Bencivenga v. J.J.A.M.M., Inc., 258 N.J. Super. 399, 406-407 (App.Div. 1992), where a bar sued by a patron who was punched by an unknown patron of the bar was not allowed to allocate fault to the unknown patron. The Court explained that in that particular case, the bar was in a better position to identify the unknown assailant and therefore, “by keeping the John Doe assailant off the verdict sheet, the trial court forced the nightclub to either identify him and mitigate its share of the fault, or decline to name him and bear the cost of his share.”

The Court noted that in hit-and-run type of situations, the Uninsured Motorist scheme is designed to protect Plaintiffs from the harshness of fault being allocated to an unknown party. Finally, the Court noted that Plaintiff had fair notice that the parties would be pointing the finger at the unknown tortfeasor and the UM carrier had the opportunity to intervene in the case if it cared to argue the point.

An interesting question is whether the Court's holding in Krzykalski is limited to motor vehicle accidents, where the uninsured motorist scheme softens the blow of the presence of an unknown tortfeasor, or applies to any tort litigation where an unknown tortfeasor is involved. On the one hand, the case references the availability of uninsured motorist coverage. On the other hand, the Court never says that its holding is limited to motor vheicle accidents and part of the Court's logic, that tortfeasors should not pay for more than their fair share of the damages unless they are 60% at fault, arguably applies equally to non-motor-vehicle situations. Further, the Court distinguishes Bencivenga by explaining that the Defendant was in a better position to identify the unknown tortfeasor, not by saying that the case did not involve a motor vehicle accident with uninsured motorist benefits available.

Based on the Krzykalski case, at least in motor vehicle accidenct cases, in most circumstances, Defendants will be able to “point the finger” at unknown parties that contributed to an injured party’s injuries unless there is a specific policy argument why the Defendant should be “on the hook” for the liability of the unknown party. If the Court's holding applies outside of motor vehicle accidents, it will have a negative impact on a number of subrogation claims. Further, UM carriers will have to consider whether they care to intervene in the insured’s tort suit in order to argue to minimize the liability of the unknown tortfeasor.

For a discussion on how comparative fault may operate differently in PIP reimbursement claims, please click here.
Please visit our Guide to Recovery of PIP in New Jersey for the text of the key New Jersey statutes regarding PIP recovery, together with an outline of those statutes, hyperlinks to definitions of key terms, discussions of key provisions of each statute, relevant case law, and other selected issues of New Jersey subrogation.

Please note that the information included herein is solely the product of Law Offices of Jan Meyer and Associates, P.C., and does not constitute legal advice. For legal advice kindly contact our office.