Just an FYI for folks: For NJ tort law, it doesn't matter if he was also negligent. What matters for determining if damages can be awarded is whether she was more negligent. And, whether she was negligent depends on how a reasonable person would act given these facts and circumstances and if she deviated from that standard. (Google "comparative negligence" for more info.)

This is just what I remember off the top of my head from law school, so someone feel free to correct me.