On appeal from the Superior Court, Law Division, Hunterdon County.
Michels, Deighan and R. S. Cohen. The opinion of the court was delivered by R. S. Cohen, J.A.D.
[239 NJSuper Page 557] Plaintiff was a prisoner at the Clinton Correctional Institution (Clinton). On July 9, 1981, she dove into an above-ground swimming pool at Clinton and suffered spinal injuries that rendered her quadriplegic. Alleging that her injuries were
caused by the State's negligence, she started this action against the State alone in September 1983.*fn1
In September 1984 the State filed third-party claims for contribution and indemnification against the pool manufacturer and distributor. In September 1985 it added the retailer of a replacement pool liner, which in turn brought in the liner manufacturer. In November 1987, over six years after the accident, the State made a third-party claim against the liner manufacturer and also amended to charge all third-party defendants with strict product liability and to add, or clarify, as the State argues, a direct claim for medical costs which the State incurred in treating plaintiff for her injuries.
Weeks before a scheduled trial in the spring of 1989, the third-party defendants moved for summary judgment against the State's claims for contribution and indemnification. The motions were granted on the thesis that, since N.J.S.A. 59:9-2b bars suit against the State on product liability theories, the State in turn is barred from asserting claims for contribution and indemnification on those theories.
The State's application for leave to appeal was held pending pre-trial decision on other motions not yet heard in the Law Division. Those motions were then heard and the judge decided that the State's claim for reimbursement of medical expenses was not included in its 1985 third-party complaint, but only in its 1987 amendments, and was time-barred. The judge also ruled that if plaintiff's negligence does not exceed the State's,
the liability of third-party defendants on the State's claim for contribution will be determined as follows: if any third-party defendants' [sic] percentage of liability is less than the State's negligence, then the State cannot recover any contribution from that third-party defendant. . . .
The State's complaint about that ruling is that under the comparative negligence provisions of N.J.S.A. 59:9-4 the State's
negligence is irrelevant: it is the negligence of plaintiff which is compared with each defendant's.
The judge made another ruling challenged by the State. It was that
in the event of reinstatement of the State's direct claim, the liability of third-party defendants under the State's direct claim will be determined as follows: if any third-party defendants' [sic] percentage of liability is less than the combined negligence of the plaintiff and/or the State, the State ...