## Facts

- Club 35 operated an 18-to-21 nightclub with a dance floor and overhead lighting, including a strobe light controlled from a locked employee-only room.
- The club employed bouncers whose stated role was to maintain order and provide patron safety, including monitoring the dance floor.
- Ralph Bencivenga attended with friends; a female patron twice accused him of pinching her, and a bouncer suggested the group leave.
- Bencivenga instead went onto the dance floor; shortly thereafter, the strobe light was activated, reducing visibility.
- Four men pushed through the crowd; one accused Bencivenga of pinching his girlfriend and punched him, breaking his nose.
- No bouncer intervened before or after the assault; the manager and bouncers escorted Bencivenga’s group outside without calling police or medical help, and the assailant was not removed.
- Bencivenga required surgery and suffered permanent facial injury; he sued the club, its manager, and fictitiously named defendants including the unknown assailant (“John Doe”).
- At trial, the club requested a comparative-fault instruction requiring the jury to allocate fault among the club, Bencivenga, and the unidentified assailant; the trial court refused and the jury awarded $40,000 against the club.

## Issues

1. Whether New Jersey’s Comparative Negligence Act permits a jury to allocate fault to an unidentified fictitious tortfeasor (“John Doe”) to reduce a named defendant’s percentage of liability.
2. Whether the evidence required submission of plaintiff’s comparative negligence to the jury.

## Decision

- The Appellate Division affirmed the judgment for Bencivenga.
- The court held the jury was properly not instructed to allocate fault to the unnamed, unknown intentional tortfeasor.
- The court held the record did not support submitting plaintiff’s conduct for comparative-fault allocation.

## Legal Principles

- Comparative-fault allocation under New Jersey’s Comparative Negligence Act is limited to parties properly before the court or those against whom recovery is actually sought in a manner permitting a judgment.
- An unidentified fictitious defendant cannot be included in comparative-fault apportionment where the person is not a real party against whom a judgment can be entered.
- A comparative-negligence charge as to the plaintiff is not warranted absent evidence that the plaintiff’s conduct contributed to the injury.
- A commercial premises operator may be liable for failing to take reasonable measures to protect patrons from foreseeable harm by third parties, including by providing and using security personnel.

## Conclusion

The Appellate Division upheld the verdict against the nightclub, ruling that the Comparative Negligence Act did not allow reducing the club’s liability by allocating fault to an unidentified “John Doe” assailant, and that the evidence provided no basis to submit plaintiff fault to the jury.


Bencivenga v. J.J.A.M.M., Inc., 258 N.J. Super. 399, 609 A.2d 1299 (N.J. Super. Ct. App. Div. 1992)