New Milford Bd. of Educ. v. Juliano

• Decision Date: 10 July 1987
• Citation: 530 A.2d 43,219 N.J.Super. 182
• Parties: , 72 A.L.R.4th 223, 41 Ed. Law Rep. 651 NEW MILFORD BOARD OF EDUCATION and the Borough of New Milford, Plaintiffs- Appellants, v. August B. JULIANO, M.D.; Angelo Mininni, M.D., and Angelo Mininni, M.D., P.A., Defendants-Respondents. and SOCIETY OF THE VALLEY HOSPITAL; Robert Staub, M.D., John V. Reardon, M.D., Radiology Associates of Ridgewood, P.A. and Alexis Doe (said name being fictitious), Defendants, v. Mary TARANTO, Third-Party Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 182

219 N.J.Super. 182

530 A.2d 43, 72 A.L.R.4th 223, 41 Ed.

Law Rep. 651

NEW MILFORD BOARD OF EDUCATION and the Borough of New

Milford, Plaintiffs- Appellants, v. August B. JULIANO, M.D.; Angelo Mininni, M.D., and Angelo

Mininni, M.D., P.A., Defendants-Respondents.

and

SOCIETY OF THE VALLEY HOSPITAL; Robert Staub, M.D., John V.

Reardon, M.D., Radiology Associates of Ridgewood,

P.A. and Alexis Doe (said name being

fictitious), Defendants, v. Mary TARANTO, Third-Party Defendant.

Superior Court of New Jersey,

Appellate Division.

Argued March 24, 1987.

Decided July 10, 1987.

Kathryn N. Roettger, Morristown, for plaintiffs-appellants (Kenneth J. Fost, attorney; Kathryn N. Roettger, on brief).

Jeffrey S. Brown, Morristown, for defendants-respondents August B. Juliano, M.D. (Shanley & Fisher, attorneys; Richard E. Brennan and Jeffrey S. Brown, on brief).

Judith A. Wahrenberger, Roseland, filed a letter brief on behalf of defendant-respondent Angelo Mininni, M.D. (Connell, Foley & Geiser, attorneys).

Before Judges O'BRIEN, SKILLMAN and LANDAU.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

On August 1, 1979, Karen Taranto, then 13 years old, was injured when a volleyball stanchion fell on her left foot. Plaintiff Borough of New Milford was the sponsor of the recreational program in which Karen was participating and plaintiff New Milford Board of Education owned the volleyball stanchion. Karen was treated for her injury by defendant Dr. August B. Juliano, an orthopedist. She also saw defendant, Dr. Angelo Mininni, a general surgeon, for a consultation. Several months after the accident three toes on Karen's foot had to be amputated because of gangrene.

Karen's parents brought suit on her behalf against New Milford, the New Milford Board of Education and Jayfro Corporation, which was the manufacturer of the volleyball stanchion. No suit was brought on her behalf against Doctors Juliano and Mininni. The lawsuit was ultimately settled for $200,000, $25,000 of which was paid by New Milford, $41,334 by the Board of Education and the remainder by Jayfro.

This lawsuit was brought to obtain reimbursement for the portion of the money paid to Karen which plaintiffs contend is attributable to medical malpractice in her care and treatment. ¹ More specifically, plaintiffs allege that the amputation of Karen's toes would not have been required if she had been properly treated.

Summary judgment motions filed by defendants Juliano and Mininni were granted. The trial court rejected plaintiffs' claim based on a theory of contribution because any malpractice committed by defendant doctors would make them "successive" rather than "joint" tortfeasors and hence the parties could not be found to be "jointly or severally liable in tort for the same injury." N.J.S.A. 2A:53A-1. The trial court rejected plaintiffs' claim based on a theory of indemnification because plaintiffs were not "free from fault," which the trial court held to be a precondition for securing indemnification.

We agree with the trial court's conclusion that plaintiffs are not entitled to seek contribution from defendant doctors because the right of contribution is purely statutory. The defendant doctors could only be held liable for the aggravation of Karen's injuries caused by their malpractice and not for the injuries initially caused by the fall of the volleyball stanchion. Hence, defendant doctors could not be liable for "the same injury to person" as plaintiffs and there is no right to contribution under N.J.S.A. 2A:53A-1. See also N.J.S.A. 2A:15-5.3, which provides for contribution only among "joint tortfeasors"; cf. Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 566-570, 410 A.2d 674 (1980). However, we conclude that plaintiffs should have a right to seek indemnification from defendants for any additional damage to Karen which was proximately caused by defendants' medical malpractice. Accordingly, we reverse.

A right of indemnity may be created either by contract or by the courts as an equitable remedy. See Prosser & Keeton on Torts (5th ed. 1984) § 51. It is the latter form of indemnity which is involved in this case. Such indemnity is allowed "... to prevent a result which is regarded as unjust or unsatisfactory." Ibid. at 341. This form of indemnity "... has been recognized in cases where equities supported it. A court's view of the equities may have been based on the relation of the parties to one another, and the consequent duty owed; or it may be because of a significant difference in the kind or quality of their conduct." Ibid. at 344.

The New Jersey cases applying these principles have involved claims between joint tortfeasors. In that context our courts have held that a tortfeasor must have been without fault and his liability must be merely constructive, secondary or vicarious in order to make a claim for indemnification. Cartel Capital Corp. v. Fireco of New Jersey, supra, 81 N.J. at 566, 410 A.2d 674; Adler's Quality Bakery, Inc. v. Gaseteria, Inc., 32 N.J. 55, 79-80, 159 A.2d 97 (1960); Daily v. Somberg, 28 N.J. 372, 385, 146 A.2d 676 (1958). Where a tortfeasor secures indemnification from another jointly liable tortfeasor, the result is that the indemnitor becomes liable for the full damages of the injured party. Cartel Capital Corp. v. Fireco of New Jersey, supra, 81 N.J. at 566, 410 A.2d 674. Consequently, in the case of joint tortfeasors, "[i]t would be inequitable to permit an active wrongdoer in the absence of a contractual understanding between the parties to obtain indemnity from another wrongdoer and thus escape any responsibility." Ibid.

No New Jersey case has decided a claim of indemnity between successive tortfeasors, although the issue was noted in Daily v. Somberg, supra, 28 N.J. at 386, 146 A.2d 676 and Lawlor v. Cloverleaf Memorial Park, 106 N.J.Super. 374, 390, 256 A.2d 46 (App.Div.1969), rev'd on unrelated grounds, 56 N.J. 326, 266 A.2d 569 (1970). This appeal requires us to determine the validity of such a claim.

A claim for indemnity by initial tortfeasors, such as plaintiffs, against successive tortfeasors, such as defendant doctors, is fundamentally different from a claim for indemnity by one joint tortfeasor against another. Plaintiffs do not seek to escape responsibility for their tortious conduct by holding defendant doctors liable for all damages incurred by Karen. Rather, plaintiffs' claim is limited to the difference between what Karen's damages would have been if defendants had not committed malpractice and the full amount of damages which she suffered as a result of both the original accident and the subsequent malpractice. It is clear that a tortfeasor is responsible for all damages that naturally and proximately flow from the initial tort, including the consequences of medical malpractice in treating the injuries caused by his wrong. Ciluffo v. Middlesex Gen'l Hospital, 146 N.J.Super. 476, 482, 370 A.2d 57 (App.Div.1977); Knutsen v. Brown, 96 N.J.Super. 229, 235, 232 A.2d 833 (App.Div.1967). However, in our view, the responsibility of an initial tortfeasor for the additional harm caused by subsequent medical malpractice is less immediate and less direct than the responsibility of the party or parties who have actually committed the malpractice. Indeed, the initial tortfeasor's responsibility for that additional harm can be viewed as a form of constructive or secondary liability. Cf. Adler's Quality Bakery, Inc. v. Gaseteria, Inc., supra, 32 N.J. at 79-80, 159 A.2d 97. Consequently, we conclude that justice requires recognition of plaintiffs' right to seek indemnification against defendant doctors.

Our conclusion is supported by nearly all the decisions in other jurisdictions which have considered the right of an initial tortfeasor to seek reimbursement from a subsequent tortfeasor. See, e.g., Penn Tanker Co. v. United States, 409 F.2d 514 (5th Cir.1969); Herrero v. Atkinson, 227 Cal.App.2d 69, 38 Cal.Rptr. 490 ...