On appeal from Superior Court of New Jersey, Law Division, Bergen County.
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.*fn1 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 (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; Adler's Quality Bakery, Inc. v. Gaseteria, Inc., 32 N.J. 55, 79-80 (1960); Daily v. Somberg, 28 N.J. 372, 385 (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. Consequently, in the case of joint tortfeasors, "[i]t ...