WHOM DOES A TORT LAWYER SUE WHEN THE IDENTITY OF THE PARTY WHO INJURED HIS CLIENT IS UNKNOWN?
A tort lawyer sees an injured woman. She is wheeled into his office. Let’s say the woman tells the tort lawyer that she slipped and fell in an office building. It seems that she has a good case. She tripped on a broken stair in a business office. There was no sign warning her that the stair had a problem. She did not work in the office. She had no way of knowing about the danger in advance. The woman also tells the lawyer that she found out later that the stair had been broken for some time. But she doesn’t know who owns the building
The tort lawyer takes the case. Whom does he sue? Candidates include the building owner, the tenant who rented the office, as well as any maintenance company that was supposed to keep the property in good shape.
Trouble is, the woman can’t supply the identities of all of the above to the lawyer. She only knows the name on the office door. But the tort lawyer realizes from experience that the name on the door may not be the proper legal name of the tenant. What does the tort lawyer do?
He investigates. The tort lawyer searches the public records. With such a search, the lawyer will usually be able to find the name of the building owner. Usually, but not always, the name of the tenant can be ascertained. But there may be no public indication of whether there was a maintenance contractor involved.
After the tort lawyer investigates as much as he can, he still may not know the identities of all concerned. In that case, the New Jersey court rules allow a lawyer to sue a “fictitious party.” For example, a tort lawyer may sue “ABC Corporation”, as the fictitious name of the company who was responsible for building maintenance.
During the lawsuit, the lawyer can force the other parties being sued to disclose to him the name of the unknown party. Then, the tort lawyer can amend the lawsuit papers to reflect the proper name.
But the tort lawyer must investigate thoroughly to begin with. After suit commences, the lawyer must not delay in compelling disclosure of the missing party. If he does not act promptly, he risks a judge preventing him from adding the “missing” party to the lawsuit.
A May 2015 case dealing with this topic from the New Jersey Appellate Division is found here.
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