Intentional Wrongdoer's Indemnification of One Who Negligently Failed to Prevent the Wrong

Abstract

Section 24 of the proposed new Restatement (Third) Of Torts provides for joint and several liability when a tortfeasor is liable for negligently failing to protect a plaintiff from the specific risk of an intentional tort, even in a jurisdiction that has otherwise abandoned joint and several liability. In this essay, Professor Edward Cooper argues that a negligent tortfeasor should have a right to indemnification, not mere contribution, from an intentional tortfeasor when the only negligence was failure to protect the victim against the intentional tortfeasor's act. The intentional tortfeasor who pays more than the allocated share of responsibility should not have a right of contribution against the one who negligently failed to prevent his wrong.

In a companion essay also found on www.LegalEssays.com, Professor William Powers replies to Professor Cooper's essay.

JEL Classification: K13