Question: Can a jury find a non-party unidentified phantom liable for an intentional tort where a known party is found liable for a separate negligent tort, both of which result in one injury?

Answer: Yes, if the known party is a public entity. Maison v. N.J. Transit Corp., 460 N.J. Super. 222 (App. Div. 2019).

On July 22, 2013, Anasia Maison, while on a New Jersey Transit bus, was harassed, for approxi-mately seven minutes, by a group of male teenagers. The harassment included profane comments, thrown objects and the brandishing of a knife. As the teenagers exited the bus, one of them threw a glass bottle at Anasia, striking her in the forehead causing profuse bleeding, and requiring 22 stitches to close the wound.

The bus driver conceded that, had Anasia needed help, he would have called the police, asked the teenagers to leave, called the New Jersey Transit hotline, or stopped the bus. However, because the driver witnessed the entire encounter and felt that Anasia was "handling herself very well," he did nothing.

In plaintiff's suit against the bus driver and New Jersey Transit, she contended that defendants breached their duty, as a common carrier, to exercise its high degree of care to protect plaintiff from the unruly passengers. Neither plaintiff nor defendants joined the bottle thrower as a defendant.

On appeal of a jury verdict of $1.8 million in favor of plaintiff, the court reversed the trial court's decision, which had rejected defendant's request to include the bottle thrower on the verdict sheet. Therefore, the Appellate Division remanded the case solely to permit a jury "to address the issue of allocation of fault between the bottle thrower and defendants."

The court, in its analysis, distinguished the Comparative Negligence Act and the Joint Tortfeasors Act, 2A:53A-1 to 5, from the applicable Tort Claims provision (N.J.S.A. 59: 9-3.1). Under 2A:53A-1, joint tortfeasors are two or more persons liable "in tort for the same injury." However, under the Tort Claims Act, the public entity is liable for its percentage share of damages "along with one or more other tortfeasors." The court then interpreted this language so as not to require that the other tortfeasor actually be a joint tortfeasor with the public entity.

Thus, even though the bottle thrower's act did not involve the same tort as the bus driver, i.e., the driver's breach of the common carrier's duty of care to take some action to protect its passengers, the court held that the separate and distinct act of the bottle thrower and the act of omission of the bus driver did not preclude the jury from considering both tortfeasors' liability, even though New Jersey Transit was not an actual joint tortfeasor with the bottle thrower.

The court also rejected plaintiff's contention that the unidentified non-party bottle thrower should not be on the verdict sheet because any award attributable to the phantom would be uncollectable. The court noted that the Comparative Negligence Act requires an allocation of percentages among tortfeasors "based on the evidence—not based on the collectability or non-collectability of the tortfeasors' respective shares of the damages."

Permitting a jury to allocate liability against unknown defendants is not new. This has been done in uninsured motorist (UM) cases, Riccio v. Prudential Prop. & Cas. Ins. Co., 108 N.J. 493 (1987), as well as cases involving settling defendants, Cartel Capital Corp. v. Fireco, 81 N.J. 548 (1980); dismissed defendants, Burt v. W. Jersey Health Sys., 339 N.J. Super. 296 (App. Div. 2001); and John Doe defendants, Cockerline v. Menendez, 411 N.J. Super. 596 (App. Div. 2010).

What makes this case different and significant is the fact that it allows a jury to consider the liability of a known but unidentified defendant who has never been officially in the case, neither as a dismissed defendant, a settling defendant, or even a John Doe defendant. However, in this case, both plaintiff and defendant had "fair and timely notice" of the bottle thrower's conduct. Indeed, plaintiff's complaint alleged that the conduct of another passenger caused her injuries "by throwing a glass object at her face." Additionally, defendant's answer included a separate defense that plaintiff's injuries were "due to the acts or omission of third persons over whom this defendant had no control."

For this reason, the court concluded that "persons known to be at least partly liable should be allocated their share of the fault even when, in circumstances like these, they remain unidentified." This is so, the court reasoned, because the Joint Tortfeasors Contribution Law (JTCL) "was enacted to promote the fair sharing of the burden of judgment by joint tortfeasors and to prevent a plaintiff from arbitrarily selecting his or her victim."

Apparently, the court felt that to require either the complaint or a third-party complaint to list a John Doe bottle thrower would simply be a matter of form over substance. Here, plaintiff chose to sue only the bus driver and N.J. Transit, but not the phantom—i.e., she arbitrarily selected her victim, seeking to collect only from the solvent defendant. Therefore, it would appear, to this author, that to not permit the jury to consider the liability of the clearly responsible bottle thrower would have not only prejudiced defendants but would have been contrary to the JTCL's design to fairly share liability among tortfeasors.

After all, the jury is the trier of facts. In this case, the bottle thrower, although not officially before the court, was factually before the jury. So shouldn't the jury be permitted to completely perform its fact-finding duty? Because the Supreme Court granted cert. on Dec. 10, 2019, the answer to this question must await its decision.

Stay tuned.

Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.