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.
Appellant club sought review of decision of the Superior Court, Middlesex County (New Jersey), which denied its request to instruct the jury to compare its negligence with the negligence of respondent injured customer and the intentional conduct of an unknown defendant for purposes of apportioning liability under the Comparative Negligence Act. Appellant club sought review of the lower court's denial of its request to instruct the jury to compare the negligence of it with the negligence of respondent injured customer, and the intentional conduct of an unknown defendant in order to apportion liability under the Comparative Negligence Act (the Act), N.J. Stat. Ann. § 2A:15-5.1 et seq. Respondent was injured by an unknown person while at a club owned by appellant.
Whether judgment could be sought against a fictitious person?
The court found that the Act required comparison of a plaintiff's negligence with the negligence of the person against whom recovery was sought. The court held that the Act made the negligence of the person against whom recovery was sought and the negligence of each party to the suit a prerequisite to apportioning fault, and a fictitious person was not someone against whom recovery could be sought because a fictitious person was not a party. The court affirmed the judgment because the jury should not have been instructed to consider the intentional conduct of an unnamed, unknown defendant, and respondent's conduct would have been compared only when it was wrongful and causally contributed to the injuries.