“The Supreme Court has twice cited Matsuda as recognizing liability for negligent hiring or retention.”
How later courts described this case
- “The Supreme Court has twice cited Matsuda as recognizing liability for negligent hiring or retention.”
Written by the judges who cited it.
The opinion
Filed
Washington State
Court of Appeals
Division Two
June 17, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
LISA EARL, on behalf of and THE ESTATE No. 59220-7-II
OF JACQUELINE SALYERS,
Respondent,
v.
SCOTT CAMPBELL; the marital community PUBLISHED OPINION
of Scott and Jane Doe Campbell; AARON
JOSEPH a/k/a AARON KOMOMUA; and the
marital community of Aaron Joseph/Komomua
and Jane Doe Joseph/Komomua; and CITY OF
TACOMA,
Petitioners.
CRUSER, C.J.—Officer Scott Campbell fatally shot Jacqueline Salyers in 2016. Lisa Earl,
Salyers’ mother, sued Campbell and the City of Tacoma in United States District Court in 2017,
alleging negligence, excessive force, and substantive due process claims. The district court granted
summary judgment for the City, dismissing Earl’s claims. Following the Washington State
Supreme Court’s decision in Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 442 P.3d 608
(2019), the district court vacated summary judgment on the state law negligence claims. In 2021,
Earl filed negligence claims against the City and Campbell in Pierce County Superior Court. In
2023, after receiving a report from a police practices expert, Earl moved to amend her complaint
to add a negligence claim against Officer Aaron Joseph, Campbell’s partner, and a claim against
No. 59220-7-II
the City for negligent retention of Joseph. The superior court granted Earl’s motion to amend the
complaint. Petitioners sought discretionary review. We granted discretionary review in 2023.1
Petitioners argue that Earl’s negligent retention claim is not viable because Earl alleged,
and the City conceded, that Joseph was acting within the scope of his employment during the
incident in question, and thus agreed that in the event the jury concludes that Joseph acted
negligently in his use of force, the City is vicariously liable for Joseph’s negligence. The City
asserts that where the employer agrees that it is vicariously liable for an employee’s negligence, a
negligent retention claim cannot be simultaneously asserted. In answering the certified question,
we hold that where an employer concedes that its employee was acting within the scope of their
employment during the allegedly negligent act, and that it is vicariously liable for the employee’s
negligence, a simultaneous negligent retention claim is superfluous and cannot be brought.
FACTS
I. BACKGROUND
In January 2016, Tacoma police officers Scott Campbell and Aaron Joseph received a tip
regarding the location of Kenneth Wright, who had numerous outstanding warrants for his arrest.
The informant provided a description of the vehicle Wright was seen in. The officers located a
vehicle that matched the informant’s tip, and found Wright sitting in the passenger’s seat.
Jacqueline Salyers, Wright’s girlfriend, was sitting in the driver’s seat.
1
In an order modifying the commissioner’s grant of review, we limited review solely to the issue
certified by the trial court under RAP 2.3(b)(4), and declined review of whether the trial court
erred in granting the motion to amend the complaint to add Joseph as a defendant. Ruling Granting
Discretionary Rev., Earl v. Campbell, No. 59220-7-II (Wash. Ct. App. April 1, 2024).
2
No. 59220-7-II
According to Joseph’s declaration, upon locating the suspect vehicle, he parked the patrol
car in front of Wright’s vehicle, exited, and approached Wright’s vehicle with his weapon drawn
while commanding Wright and Salyers to show their hands. Campbell also exited the patrol car
and approached Wright’s vehicle. According to Campbell’s declaration, as he observed Wright,
Wright appeared to lean over and reach under his seat. Focused on Wright, Campbell drew his
weapon and approached the passenger side of the vehicle.
As the officers approached, Salyers began inching the vehicle forward. Joseph struck
Salyers’ window with his weapon in an effort to break the window, and as he did, Salyers
accelerated. Joseph stated, “[w]ithin a few seconds of the car accelerating, I heard gunshots and
saw the muzzle flash from the gun.” Clerk’s Papers (CP) at 122. Campbell explained that Salyers
accelerated the car in his direction, causing him to jump backwards and rapidly move away from
the car. At that point, he “fired a volley of shots at the driver,” ultimately hitting Salyers with four
bullets and killing her. Id.
II. PROCEDURAL HISTORY
A. 2017 Complaint
In April 2017, Earl (Salyers’ mother, the personal representative of Salyers’ estate, and the
legal guardian of two of Salyers’ four minor children) filed a federal lawsuit in the United States
District Court for the Western District of Washington. Earl asserted an excessive force claim,
substantive due process claims, and wrongful death claims.2
2
Earl v. Campbell, No. C17-5315BHS, 2019 WL 1403262, at *1 (W.D. Wash. Mar. 28, 2019)
(court order), vacated in part, 2020 WL 777205 (W.D. Wash. Feb. 18, 2020) (court order), aff'd,
859 F. App'x 73 (9th Cir. 2021).
3
No. 59220-7-II
In March 2019, the federal court granted the City’s motion for summary judgment. Earl,
2019 WL 1403262, at *4, 9. The court concluded that “Campbell is entitled to qualified immunity
on the Estate’s excessive force claim, Plaintiffs fail to submit sufficient evidence to establish any
substantive due process claim, and Plaintiffs have failed to establish their negligence claims as
asserted in the complaint.” Id. at 4.
Earl filed a motion for reconsideration in July 2019, following our supreme court’s decision
in Beltran-Serrano.3 The court granted Earl’s motion in February 2020, vacating the previous order
in regard to Earl’s state law claims.4 The court reasoned that “reconsideration is warranted because
Beltran-Serrano constitutes a significant change in the law and undermines the Court’s analysis
of their state law claims.” Earl, 2020 WL 777205, at *3. The court declined to exercise
supplemental jurisdiction over the state law negligence claims, dismissed the 42 U.S.C. § 1983
claim with prejudice, and dismissed the state law claims without prejudice. Id. Earl appealed the
district court’s grant of summary judgment regarding the federal claims to the Ninth Circuit. Earl
v. Campbell, 859 F. App’x 73 (9th Cir. 2021). In June 2021, the Ninth Circuit affirmed the district
court’s grant of summary judgment regarding the claims of excessive force, substantive due
process, and denial of access Id. at 73-74, 76.
B. 2021 Complaint
In August 2021, following the federal district court’s order vacating the grant of summary
judgment as to Earl’s state law claims, Earl filed state law negligence claims in Pierce County
3
Beltran-Serrano holds that the fact that an officer’s conduct may constitute an intentional tort
does not preclude a negligence claim. Beltran-Serrano, 193 Wn.2d at 540.
4
Earl v. Campbell, No. C17-5315BHS, 2020 WL 777205, at *5 (W.D. Wash. Feb. 18, 2020) (court
order), aff'd, 859 F. App'x 73 (9th Cir. 2021).
4
No. 59220-7-II
Superior Court. Again, Earl alleged that Campbell acted negligently in shooting and killing
Salyers, and his negligence caused the wrongful death of Salyers. The complaint alleged that the
City was liable for the negligent conduct of Campbell.
1. 2023 Amended Complaint
In May 2023, Earl moved to amend her complaint, seeking to add a negligence claim
against Joseph, a vicarious liability claim against the City based on Joseph’s negligence, and a
negligent retention claim against the City for retaining Joseph.
Earl retained a police practices expert, and argued that new evidence brought to light by
the expert’s report contradicted Joseph’s assertion that he did not fire his gun on the night of
Salyer’s death, which bore upon Joseph’s veracity.5 Earl also discovered that Joseph was
investigated for domestic violence in 2009. Earl argued that “[h]ad he been fired, as he should
have per policy, Joseph would not have committed negligent acts, such as his own admitted act of
smashing his police pistol against her window, giving rise to Jackie Salyers’ death.” CP at 29. The
superior court granted Earl’s motion to file the amended complaint adding the negligence claim
against Joseph and the negligent retention claim against the City.
In the amended complaint, Earl stated that when Joseph was initially interviewed, “he
maintained that he was carrying three ammunition magazines that night, that each one had the
capacity to hold 13 bullets, and that all three were filled to capacity.” Id. at 446. However, the
police practices expert discovered that “[o]ne live bullet was missing and unaccounted for.” Id. at
447. This discovery prompted Earl to further investigate Joseph’s background.
5
Earl did not assert that Joseph shot Salyers.
5
No. 59220-7-II
According to the complaint, in investigating Joseph’s background, Earl discovered that in
2009, Joseph’s then-wife “reported to the Tacoma Police Department that Joseph had threatened
to shoot and kill her, to shoot and kill his fellow police officer Steven Storwick, and to shoot and
kill himself.” Id. According to the complaint, during the incident involving his then-wife, Joseph
struck his gun against a door frame. Joseph was arrested and charged with assault in the second
degree and felony harassment.6 According to the complaint, the prosecutor moved to dismiss the
felony charges, “stating that the case was more appropriately handled in District Court.” Id. at 448.
The superior court granted the motion, and a misdemeanor charge was filed against Joseph in
district court. “Joseph requested and received a deferred prosecution,” after which the charge was
dropped and the court later granted Joseph’s petition to expunge his arrest records. Id.
Earl now argues that “[i]t was unreasonable and negligent for the City of Tacoma to
continue to employ Joseph as a police officer” after learning of his “criminal behavior . . . reckless
handing of his gun . . . [and] that Officer Joseph was psychologically and emotionally disturbed
enough to threaten to kill himself and others.” Id. at 448-49. Earl asserts in the amended complaint
that “[b]y committing several acts, including but not limited to the smashing of his gun against her
window, Officer Joseph negligently escalated the confrontation between Salyers and the police,
and his negligent acts were proximate causes of the wrongful death of [Salyers].” Id. at 452. In
regard to the negligent retention claim, Earl asserts that:
The City of Tacoma negligently failed to fire Officer Joseph after learning
of his criminal assault on his wife, his criminal threat to kill his fellow police
officer, his emotional and psychological instability and his threat to kill himself,
and his reckless handling of a gun by smashing it against a door frame. Tacoma’s
negligent retention of Joseph as a police officer employee of City was a proximate
cause of the wrongful death of Jacqueline Salyers.
6
See Br. of Resp’t, App. D.
6
No. 59220-7-II
Id. at 455.
The City moved for the court to reconsider its order granting Earl’s motion to file an
amended complaint, asserting that Earl’s claims of newly discovered evidence were without merit
and prejudiced the City. The City argued that the court’s order was contrary to controlling case
law which, according to the City, required employees to be acting outside the scope of employment
in order for a negligent retention claim to be actionable. The City argued that according to
precedent, a negligent retention claim is not viable alongside a claim of vicarious liability, as it
would be redundant. The trial court denied the motion.
2. Motion for Discretionary Review
In July 2023, the City filed a motion to certify an order for discretionary review and to stay
proceedings. The proposed question asked whether the court’s order granting Earl’s motion to
amend her complaint “ ‘involve[d] a controlling question of law as to which there is a substantial
ground for a difference of opinion and that the immediate review of the order may materially
advance the ultimate termination of litigation.’ ” Id. at 461 (quoting RAP 2.3(b)(4)).
In August 2023, the superior court granted the motion in part, finding “that there is a
conflict between decisions of the Washington State Appellate Courts and the Washington State
Supreme Court as it pertains to claims of negligent retention.” Id. at 825. The court certified the
following issue for appeal:
Is a claim for negligent retention actionable where the Plaintiff has asserted claims
which, if proven, would impose liability against the employer under the doctrine of
respondeat superior and where there is no allegation that the employees were acting
outside the course and scope of their employment at the time of the alleged tortious
conduct?
Id. at 826. We granted discretionary review.
7
No. 59220-7-II
ANALYSIS
This case comes before us on the certified question from the trial court set forth above.
When Earl brought this amended complaint on behalf of the estate asserting negligence claims
against Campbell and Joseph and vicarious liability claims against the City, the City, in its answer
to the complaint, conceded that both Campbell and Joseph were acting “within the course and
scope of [their] employment at the time of the events that give rise to this lawsuit.” Id. at 806
(emphasis added).7 It is this feature of the case that answers the certified question from the trial
court. We hold that where an employer agrees that it would be vicariously liable because the
employee was acting within the scope of employment when the employee committed the allegedly
negligent act on which the lawsuit is based, a negligent retention claim is redundant and not
actionable.
We review certified questions de novo, as they involve questions of law. Wright v. Lyft,
Inc., 189 Wn.2d 718, 722, 406 P.3d 1149 (2017). The doctrine of vicarious liability, or respondeat
superior, “imposes liability on an employer for the torts of an employee who is acting on the
employer’s behalf.” Niece v. Elmview Grp. Home, 131 Wn.2d 39, 48, 929 P.2d 420 (1997).
However, an employer is not vicariously liable when an employee “steps aside from the
employer’s purposes in order to pursue a personal objective.” Id. While “the scope of employment
limits the employer’s vicarious liability. . . . the scope of employment is not a limit on an
employer’s liability for a breach of its own duty of care.” Id.
7
The City’s answer contains a typo in which the words “Scott Campbell” appear in paragraph 92
in which the City intended to say “Aaron Joseph.”
8
No. 59220-7-II
Apart from vicarious liability, an employer has a limited duty “to foreseeable victims, to
prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering
others,” even when an employee is acting outside the scope of employment at the time. Id. The
causes of action for negligent hiring and retention arise out of this duty. Id. Negligent hiring and
retention claims are based on the theory that it was the employer who wronged the injured party,
and these claims are entirely independent of the liability an employer might have under the doctrine
of respondeat superior. Id.
In negligent retention claims, “[a]n employer may be liable for harm caused by an
incompetent or unfit employee if (1) the employer knew, or in the exercise of ordinary care, should
have known of the employee’s unfitness before the occurrence; and (2) retaining the employee
was a proximate cause of the plaintiff’s injuries.” Betty Y. v. Al-Hellou, 98 Wn. App. 146, 148-49,
988 P.2d 1031 (1999). To establish proximate cause, the plaintiff must show that the injured party
was injured by some negligent or other wrongful act of the employee alleged to have been
negligently hired or retained. Scott v. Blanchet High Sch., 50 Wn. App. 37, 43, 747 P.2d 1124
(1987). Specifically, the plaintiff must show that the employee’s poor performance that was the
proximate cause of plaintiff’s injury was also the same type of poor performance that the employer
was aware of. Smith v. Sacred Heart Med. Ctr., 144 Wn. App. 537, 544, 184 P.3d 646 (2008); See
Anderson v. Soap Lake Sch. Dist., 191 Wn.2d 343, 360-61, 364, 423 P.3d 197 (2018).
Initially, we note that the superior court certified this question because it opined “that there
is a conflict between decisions of the Washington State Appellate Courts and the Washington State
Supreme Court as it pertains to claims of negligent retention.” CP at 825. Because the court of
appeals is bound by supreme court precedent, we first address the supreme court cases cited by the
9
No. 59220-7-II
parties and the trial court. Second, we examine the relevant court of appeals cases that the superior
court and Earl identified as decisions that supposedly conflict with each other and with supreme
court precedent.
I. SUPREME COURT CASES
Earl cites Estes v. Brewster Cigar Co., 156 Wash. 465, 287 P. 36 (1930), abrogated by
Mancini v. City of Tacoma, 196 Wn.2d 864, 479 P.3d 656 (2021), in support of her assertion that
a negligent retention claim brought in a case where the employer agrees that the employee was
acting within the scope of employment is not redundant to a vicarious liability claim. In Estes, Mr.
Daymude, an employee of the Brewster Cigar Company, was accused of causing an assault against
a customer of Brewster. 156 Wash. at 466-67. Estes alleged that Brewster, in addition to selling
cigars, conducted an unlawful gambling game (a dice game) at its store “whereby cigarettes, cigars,
tobacco and other merchandise of value were bet, wagered and hazarded upon chance.” Id. at 467.
Estes alleged that on a particular date he was induced to engage in this dice game by Daymude,
and that after losing the game he attempted to leave the store. Id. Upon leaving the store, Daymude
pursued Estes and screamed such things as “Thief” and “robber”, causing a police officer who
heard the commotion to attempt apprehension of Estes. Id. The police officer shot and wounded
Estes during the pursuit. Id.
Estes sued both Daymude and Brewster, claiming that Brewster was vicariously liable for
Daymude’s actions. Id. at 466, 468. The supreme court held that because Daymude was not acting
within the scope of his employment when he pursued Estes without cause, Brewster was not
vicariously liable for Daymude’s wrongful act. Id. at 472-74. The court also observed,
There is a line of cases, to which we have lent sanction in Matsuda v.
Hammond, 77 Wash. 120, 137 [P.] 328, 51 L. R. A. (N. S.) 920, to the effect that a
10
No. 59220-7-II
master is liable for the unauthorized wrongful acts of his servant, if he continues
the servant in his employment after he has knowledge that the servant has
committed or is liable to commit wrongful acts while in the performance of the
duties for which he is employed. But this consideration is not present here. There
is no allegation in the complaint in this instance that the master had knowledge of
any such tendency on the part of the servant.
Id. at 473-74 (emphasis added).
In her brief Earl makes much of this passage, suggesting that it constitutes a holding that a
negligent retention claim is viable alongside a vicarious liability claim.8 We find no such holding
in Estes. First, this passage is dictum. Estes’ claim against Brewster was solely one of vicarious
liability based on his assertion that Daymude was acting within the scope of employment in
committing the wrongful act. Id. at 472-73. Second, the Estes court rejected Estes’ assertion that
Daymude was acting within the scope of employment and accordingly held that Brewster was not
vicariously liable for Daymude’s wrongful act. Id. at 473. As such, there was no occasion for the
Estes court to address the question of when the employee is, undisputedly, acting within the scope
of employment, the employer is separately liable for a negligent hiring claim. Id. at 473-74. At
most, this passage from Estes is an acknowledgment that a cause of action for negligent hiring
exists within the law—a proposition the City does not dispute in this case. See Peoples v. Puget
8
Later in her brief, Earl claims that “In Estes, the Supreme Court specifically recognized a
negligent retention claim and a vicarious liability claim against an employer are not
‘incongruent.’ ” Br. of Resp’t at 51. She cites to page 471 of Estes. The majority of the text on
page 471 was overruled in part in 2021. The most relevant portion of text on the page Earl cites to
states: “ ‘There may be more than one proximate cause for the same injury. The negligence of
different persons, though otherwise independent, may concur in producing the same injury. In such
a case, all are liable. They may be held either jointly or severally.’ ” Estes, 156 Wash. at 471
(quoting Hellan v. Supply Laundry Co., 94 Wash. 683, 686, 163 P. 9 (1917)). Again, we disagree
with Earl’s contention that Estes holds that a negligent retention claim is viable alongside a
vicarious liability claim when it has been established that the employee acted within the scope of
employment in committing the wrongful act.
11
No. 59220-7-II
Sound’s Best Chicken!, Inc., 185 Wn. App. 691, 702, 345 P.3d 811 (2015) (“The Supreme Court
has twice cited Matsuda as recognizing liability for negligent hiring or retention.”).
Moreover, Matsuda v. Hammond, 77 Wash. 120, 137 P. 328 (1913), cited by Estes and by
Earl in her brief, does not aid our analysis of the certified question. In Matsuda, the employer
(Hammond) was sued for vicarious liability for the act of his employee (Bell) in assaulting
Matsuda, a customer of Hammond, by punching Matsuda in the nose, causing it to break, while
attempting to collect a debt owed to Hammond. Id. at 121. Unlike the City in the case at bar,
Hammond disputed that her employee was acting within the scope of his employment during the
commission of the wrongful act. Id. at 123. Our supreme court agreed with Hammond and held
that Bell was not acting within the scope of his employment in assaulting Matsuda. Id. In its
discussion, the court stated:
An employer is liable for the unlawful and criminal acts of his employee only when
he directly authorizes them, or ratifies them when committed; or, perhaps,
continues an employee in his employment after he has knowledge that the employee
has committed, or is liable to commit, unlawful acts while in the pursuit of his
employer's business. The liability does not arise from a mere contract of
employment to do a legitimate and lawful act.
Id.
Here again, Earl cites Matsuda for the proposition that an employer can be liable for the
negligent retention of an employee when the employee inflicts harm on a third party. But the City
does not dispute this proposition. Rather, the City contends that the fall back claim of negligent
retention would only need to come into play where the employer disputes that its employee was
acting outside the scope of employment or there has been a judicial finding to that effect. Because
the employee in Matsuda was determined not to have been acting within the scope of employment
in committing the wrongful act, Matsuda, like Estes, is distinguishable from this case.
12
No. 59220-7-II
In La Lone v. Smith, 39 Wn.2d 167, 168, 234 P.2d 893 (1951), which Earl cites repeatedly
in her brief, a man named Trask was working as a janitor for a property management company at
an apartment complex in Spokane. Trask, who was known to be alcohol dependent and to have
assaulted a different tenant in the past, assaulted the plaintiff, Mr. La Lone. Id. at 169-70. La Lone
brought suit against the property owner (Smith), as well as the property manager (Fancy). Id. at
168. Although Trask was named in the complaint, he was not served with the complaint and was
dismissed from the action. Id. La Lone brought a claim of negligent retention against Smith and
Fancy based on Trask’s known history of drunken and assaultive behavior. Id. at 169-70. La Lone
did not make a claim of vicarious liability. Id. at 171. Smith and Fancy argued on appeal that their
retention of Trask as an employee was not the proximate cause of La Lone’s injuries because
“Trask turned aside from his duties as janitor to engage in a fight with [La Lone].” Id. In rejecting
this claim, the supreme court noted that the trial court made an unchallenged finding that Smith
and Fancy’s retention of Trask was the proximate cause of La Lone’s injuries. Id. The court further
stated,
In the instant case, the doctrine of respondeat superior is not involved,
because the issue is whether appellants were negligent in their retention of Trask.
The trial court found that they were, and that finding is accepted by us as an
established fact.
Our decisions in Matsuda v. Hammond, 77 Wash. 120, 137 Pac. 328; Estes
v. Brewster Cigar Co., 156 Wash. 465, 287 Pac. 36; and Miller v. Mohr, 198 Wash.
619, 89 P.[2d] 807, while not directly in point, recognize the legal principle that the
negligent employment or retention of an incompetent employee makes the
employer liable for injuries inflicted upon a third party by such employee.
Id.
Earl contends that La Lone stands for the proposition that a negligent retention claim is not
redundant to a vicarious liability claim. Earl states “[T]he fact that Trask assaulted La Lone while
13
No. 59220-7-II
Trask was acting within the scope of his employment did not preclude employer liability for
negligent retention.” Br. of Resp’t. at 19. This statement not only mischaracterizes the holding in
La Lone, but entirely misses the point. In La Lone, the plaintiff chose to pursue a claim against
only the employer, and only for negligent retention. La Lone did not also pursue a claim of
vicarious liability. La Lone, 39 Wn.2d at 168. La Lone does not stand for the proposition that where
a plaintiff pursues a claim against a defendant for a wrongful act committed in the course of
employment, and also pursues a claim of vicarious liability against the employer for that same act
for which the employer stipulates was committed in the course of employment, that the plaintiff
can simultaneously pursue a claim of negligent retention against the employer.
Earl also relies on Niece, which is easily distinguishable from this case and the certified
question it spurred. The issue in Niece was the special relationship between a group home and its
vulnerable, disabled resident, in a claim of negligent protection. Niece, 131 Wn.2d at 43, 46. There
was no allegation that the group home’s employee was acting within the scope of his employment.
The supreme court, in holding that Elmview had a special relationship with Niece triggering a duty
of care to protect Niece from “all foreseeable harms,” distinguished the duty arising from this
special relationship from the doctrine of vicarious liability:
Vicarious liability, otherwise known as the doctrine of respondeat superior,
imposes liability on an employer for the torts of an employee who is acting on the
employer's behalf. Where the employee steps aside from the employer's purposes
in order to pursue a personal objective of the employee, the employer is not
vicariously liable. Whether or not the employer has any particular relationship to
the victim of the employee's negligence or intentional wrongdoing, the scope of
employment limits the employer's vicarious liability. However, the scope of
employment is not a limit on an employer's liability for a breach of its own duty of
care.
Even where an employee is acting outside the scope of employment, the
relationship between employer and employee gives rise to a limited duty, owed by
14
No. 59220-7-II
an employer to foreseeable victims, to prevent the tasks, premises, or
instrumentalities entrusted to an employee from endangering others. This duty
gives rise to causes of action for negligent hiring, retention and supervision.
Liability under these theories is analytically distinct and separate from vicarious
liability. These causes of action are based on the theory that “such negligence on
the part of the employer is a wrong to [the injured party], entirely independent of
the liability of the employer under the doctrine of respondeat superior.”
Id. at 48 (internal citations omitted) (quoting Scott, 50 Wn. App. at 43).
Earl treats this passage as somewhat of a smoking gun, as though it stands for the
proposition that a plaintiff who was injured by the negligent act of an employee and to whom the
employer, based on its admission that its employee acted within the scope of employment in
committing the negligent act, is vicariously liable, can also pursue a claim of negligent retention
for the same wrongful act. To arrive at this conclusion Earl ignores the context of the holding in
Niece, which was about the application of the special relationship doctrine.
The court, having held that Elmview owed Niece an independent duty of care based on its
special relationship with Niece, went on to address Niece’s claim of negligent supervision. In
addressing this claim, the court explained that
The theory of liability for negligent supervision is based on the special relationship
between employer and employee, not the relationship between group home and
resident.
. . . While an employer generally does not have a duty to guard against the
possibility that one of its employees may be an undiscovered sexual predator, a
group home for developmentally disabled persons has a duty to protect residents
from such predators regardless of whether those predators are strangers, visitors,
other residents, or employees.
Id. at 49.
The court stated that it was “unnecessary to resolve” the negligent supervision claim
because of Elmview’s “much broader” duty to Niece by virtue of its special relationship with her:
15
No. 59220-7-II
The same evidence that would establish Elmview's negligence under a broad theory
of negligent supervision will also establish its negligence in failing to protect Niece
from all foreseeable harms. Niece's cause of action for negligent supervision thus
collapses into her negligence claim based on Elmview's breach of its special
relationship duty of care. We therefore find it unnecessary to determine whether
Niece has presented a factually sufficient claim for negligent supervision.
Id. at 52 (emphasis added). Stated another way, Niece’s negligent supervision claim was redundant
to the negligent protection claim. Id. at 52, 59. Niece does not support Earl’s contention in this
case. Rather, it supports the City’s argument that redundant claims are not actionable.
In Anderson, cited by the trial court, the plaintiff brought suit against the Soap Lake School
District for negligent hiring, training, and supervision based on the actions of its girls’ varsity
basketball coach. Anderson, 191 Wn.2d at 352. The basketball coach served the plaintiff’s
daughter, a player on the girls’ basketball team, as well as several other minors, alcohol at an
evening party at his home. Id. at 348-49. After leaving the party, the plaintiff’s daughter was killed
in a single-car accident in which her boyfriend, who had also been served alcohol by the coach,
had been driving. Id.
The court first discussed the negligent hiring and retention claims, noting that these claims
failed at the outset due to Anderson’s failure to produce “any evidence” that would support either
of these claims. Id. at 357-58. Because “Anderson did not present a genuine issue of material fact
regarding whether Soap Lake was negligent when it hired and retained”9 the basketball coach and
the claim therefore failed at the outset, the court did not go on to analyze the elements of these
claims.
9
Anderson, 191 Wn.2d at 359.
16
No. 59220-7-II
The court next discussed the negligent supervision and training claims. As to these claims,
which are analytically distinct from negligent hiring and retention claims, the court found it
necessary to determine whether the coach was acting within the scope of his employment before
deciding whether Anderson had demonstrated a genuine issue of material fact. Id. at 360-61. The
court stated:
Even if we assume that Anderson presented sufficient evidence to create a genuine
issue of material fact regarding the reasonableness of Soap Lake's training and
supervision of Lukashevich, we still must determine whether Lukashevich was
acting within the scope of his employment. This is because an action based on
negligent training and supervision “is applicable only when the [employee] is acting
outside the scope of his employment.” RESTATEMENT (SECOND) OF TORTS § 317
cmt. a [(AM. LAW INST. 1965)] (emphasis added). If the employee is acting within
the scope of his employment, then an employer is “vicariously liable under the
principles of the law of Agency” instead. Id.
Id. at 361 (first alteration in original). The court concluded that the coach acted outside the scope
of his employment and, as a result, proceeded to analyze “whether Anderson presented genuine
issues of material fact to survive summary judgment on her negligent supervision claim.” Id. at
363.
The trial court in the case at bar was confused about the import of Anderson’s failure to
explicitly state that acting outside the scope of employment was an element, at least impliedly, of
a negligent retention claim when it stated unequivocally that it is an element of both a negligent
training and supervision claim. But this observation ignores that Anderson’s initial failure to show
that the school district had any reason to know, either when it hired or retained the coach, that he
was inclined or likely to provide alcohol to underage students from the school negated the need
for the court to explore this particular question.
17
No. 59220-7-II
After concluding its discussion of Anderson’s negligent hiring, retention, training, and
supervision claims, the court addressed Anderson’s alternative claim that the school district was
vicariously liable for the coach’s conduct in serving alcohol to Anderson’s daughter. Id. at 373.
Because the coach had not acted within the scope of his employment, the court held that summary
judgment on that claim was appropriate.
Although it may be tempting to conclude that the existence of a vicarious liability claim in
Anderson demonstrates that claims for negligent retention and vicarious liability can coexist here,
such a conclusion ignores the salient posture of this case: here, the City concedes that Joseph acted
within the scope of his employment in all aspects of his interaction with Salyer. Unlike in
Anderson, the scope of employment question is neither contested nor a matter that requires
determination by either the trial court or a jury.10
In summary, none of the Washington Supreme Court cases cited by Earl or the trial court
support the assertion that when an employer stipulates that its employee acted within the scope of
employment in committing the allegedly negligent act, and would thereby be vicariously liable in
the event the trier of fact finds the employee acted negligently, that a separate claim of negligent
retention is actionable and not redundant. We next consider the court of appeals cases cited by the
trial court and the parties.
10
It is axiomatic that where an employer both disputes that its employee acted within the scope of
employment, thereby seeking to evade vicarious liability, and disclaims liability under the theories
of negligent hiring, retention, training, or supervision, the plaintiff is permitted to pursue alternate
or incongruous theories of liability.
18
No. 59220-7-II
II. COURT OF APPEALS CASES
In LaPlant v. Snohomish County, 162 Wn. App. 476, 477-78, 271 P.3d 254 (2011), cited
by the parties, sheriff’s deputies pursued a stolen vehicle in which LaPlant and another plaintiff,
Pennamen, were passengers. During the pursuit, the driver lost control of the car and collided with
a brick sign, causing injuries to LaPlant and Pennamen. Id. LaPlant and Pennamen sued Snohomish
County alleging negligence based on vicarious liability. Id. at 478. Similar to this case, LaPlant
and Pennamen were permitted to amend their complaint to add claims of negligent training and
supervision. Id. Division One of this court granted discretionary review to decide “whether a
negligent training and supervision claim should be dismissed when an employer, against whom
vicarious liability is also alleged, admits that its employees’ allegedly negligent conduct occurred
within the scope of employment.” Id. at 477. Thus, the issue in LaPlant is nearly identical to the
issue we are asked to decide in this case, with the minor difference that this case involves a claim
of negligent retention rather than negligent supervision and training.
The court first noted that a negligent supervision claim “requires a plaintiff to show that an
employee acted outside the scope of [their] employment.” Id. at 479. “But when an employee
commits negligence within the scope of employment, a different theory of liability—vicarious
liability—applies.” Id. at 479-80. The court cited its earlier opinion in Gilliam v. Department of
Social & Health Services, Child Protective Services, 89 Wn. App. 569, 950 P.2d 20 (1998), another
negligent supervision case. LaPlant, 162 Wn. App. at 480. In Gilliam, the court reiterated that
“[a]n employer is generally vicariously liable for the negligent acts of an employee conducted
within the scope of employment,” but that when an employee causes harm through acts done
outside the scope of employment, the employer may be liable for negligent supervision. Gilliam,
19
No. 59220-7-II
89 Wn. App. at 584-85. In Gilliam, as in LaPlant, the employer conceded that the employee acted
within the scope of employment and thus, the claim of negligent supervision was redundant: “If
Gilliam proves Morrow's liability, the State will also be liable. If Gilliam fails to prove Morrow's
liability, the State cannot be liable even if its supervision was negligent.” Id. at 585.
Similarly, in LaPlant, the court held that vicarious liability and negligent supervision
claims are redundant where the employer admits that its employee acted within the scope of
employment in committing the negligent act:
The rationale in Gilliam applies here because the County agreed that it
would be vicariously liable for any negligence on the part of the deputies. Both
causes of action rest upon a determination that the deputies were negligent and that
this negligence was the proximate cause of LaPlant's injuries. If LaPlant establishes
the underlying tort, the County automatically will be liable to the same extent as
the deputies. If LaPlant fails to establish that the deputies acted negligently, the
County cannot be liable, even if it was negligent in training and supervising them.
As a result, LaPlant's claim for negligent supervision, under these facts, is not only
improper because the County did not disclaim liability for the deputies' actions, it
is also superfluous. The trial court should have granted the County's motion to
dismiss.
LaPlant, 162 Wn. App. at 481.11
In Evans v. Tacoma School District No. 10, 195 Wn. App. 25, 47, 380 P.3d 553 (2016),
cited by the trial court, our division similarly applied this reasoning regarding the relationship
11
Claims involving negligent hiring or retention are distinct from claims involving negligent
supervision or training. “An employer can be liable for negligent hiring or retention for failing to
exercise ordinary care by hiring or retaining an employee known to be unfit. . . . Negligent hiring
occurs at the time of hiring, while negligent retention occurs in the course of employment.” Evans
v. Tacoma Sch. Dist. No. 10, 195 Wn. App. 25, 46-47, 380 P.3d 553 (2016) (internal citation
omitted). Employer liability in claims of negligent supervision or training “arises when the
employer knows or has reason to know that the employee presented a risk of danger to
others. . . . The employer has a duty to ‘prevent the tasks, premises, or instrumentalities entrusted
to an employee from endangering others.’ ” Id. at 47 (internal citation omitted) (quoting Niece,
131 Wn.2d at 48).
20
No. 59220-7-II
between negligent retention or supervision claims and vicarious liability claims. In Evans, the
plaintiff brought claims for vicarious liability as well as negligent hiring, retention, training, and/or
supervision. Id. at 30. Significantly, the employer in Evans, unlike the employers in LaPlant,
Gilliam, and this case, did not concede that its employee, who had sexually abused a student, was
acting within the scope of employment. See, e.g., id. at 35, 37, 40. Citing the reasoning in Niece
and LaPlant, we explained:
The causes of action for negligent hiring, retention, supervision and training
are analytically different from vicarious liability. These claims arise when the
employee is acting outside the scope of employment. They are based on the concept
that the employer’s own negligence is a wrong to the injured party, independent
from the employer’s liability for its employee’s negligence imputed by the doctrine
of respondeat superior. In fact, an injured party generally cannot assert claims for
negligent hiring, retention, supervision or training of an employee when the
employer is vicariously liable for the employee’s conduct.
Id. at 47 (internal citations omitted).
In Hicks v. Klickitat County Sheriff’s Office, 23 Wn. App. 2d 236, 248, 515 P.3d 556
(2022), we again affirmed this understanding of the relationship between vicarious liability,
negligent retention, and scope of employment. Hicks involved a negligent retention claim against
the Department of Social and Health Services regarding a social worker’s negligent investigation
of a child abuse report. Id. at 238. Relying on Evans, we stated:
Under the doctrine of respondeat superior, an employer can be vicariously liable
for its employee’s torts committed within the scope of employment. In Evans, the
court held that claims for negligent hiring, retention, supervision, and training,
which arise from conduct occurring outside the scope of employment, are
analytically different from vicarious liability. An injured party generally cannot
assert negligent retention claims when the employer is vicariously liable for the
employee’s conduct.
Id. at 248 n.9 (internal citations omitted).
21
No. 59220-7-II
We explained in Hicks that “[n]egligent retention claims generally arise when an employee
is acting outside the scope of their employment,” and held that because Hicks failed to demonstrate
that the social worker “acted outside the scope of employment, . . . Hicks’ negligent retention
claim fails as a matter of law.” Id. at 248.
The final court of appeals case warranting discussion because Earl significantly relies on
it is Carlsen v. Wackenhut Corp., 73 Wn. App. 247, 868 P.2d 882 (1994), although this reliance is
not well taken. Carlsen contains no discussion of the relationship between vicarious liability and
claims of negligent hiring or retention. Rather, the plaintiff in Carlsen, who had been sexually
assaulted by a concert worker (Futi) employed by Wackenhut at the Tacoma Dome, asserted claims
of negligence for which, she alleged, Wackenhut was vicariously liable, as well as negligent hiring
and supervision of Futi. Id. at 249. The trial court dismissed the claims of negligent hiring and
supervision on summary judgment and we reversed, finding that the plaintiff demonstrated a
genuine issue of material fact as to the those claims. We said this in footnote 4:
The trial court’s order on summary judgment did not dismiss Carlsen’s
lawsuit against Wackenhut. Neither did it indicate that there was no just reason to
delay an appeal. Although Wackenhut’s counsel state in its brief that Carlsen’s
lawsuit, insofar as it was based on respondeat superior, had been dismissed, it does
not cite to the record to support that statement. Furthermore, the trial court’s order
belies that assertion. . . . The order, therefore, is not appealable pursuant to RAP
2.2(d); . . . Nevertheless, we have chosen to review the trial court’s order pursuant
to the provisions of RAP 2.3.
Id. at 252 n.4 (some internal citations omitted).
In other words, the defendant in Carlsen did not ask us to examine the relationship between
vicarious liability and negligent hiring or supervision because the defendant in that case did not
realize the vicarious liability claim remained a part of the case. Upon realizing the issue, we
22
No. 59220-7-II
acknowledged that the order was not appealable and converted our review to discretionary review
under a different rule of appellate procedure. Id.
Earl nevertheless asserts that in Carlsen, we held that Futi was acting within the scope of
his employment when he sexually assaulted the plaintiff. Earl focuses on the following quotations
from Carlsen: “ ‘Futi was, in a real sense, responsible for protecting young concert goers’ and ‘for
ushering patrons to their seats.’ ” Br. of Resp’t at 23 (quoting Carlsen, 73 Wn. App. at 255-56).
These statements do not reflect the Carlsen court determining that Futi was acting within the scope
of his employment as Earl contends. Rather, these statements were made within the context of our
holding that a genuine issue of material fact existed about whether Wackenhut should have more
closely investigated Futi’s background before hiring him. We stated,
Although Futi's responsibilities were, arguably, not so great as those
delegated to the employees in Easley or Welsh, in that he was not guarding valuable
personal property and was not authorized to carry a weapon, Futi was, in a real
sense, responsible for protecting young concert goers. Viewing the evidence most
favorably to Carlsen, as we must, there is at least an inference that Wackenhut held
Futi out as more than a mere ticket taker.
....
. . . A jury might well conclude that it was reasonable for concert patrons to look
upon Futi as one authorized to perform security functions, and that, therefore,
Wackenhut should have more extensively examined Futi's background before
hiring him. The need for such a determination by a jury seems especially
compelling in light of the limited information and inconsistencies in Futi's
applications for employment. This additional investigation might well have
disclosed Futi's prior juvenile record.
23
No. 59220-7-II
Carlsen, 73 Wn. App. at 255-56.12, 13
Carlsen does not stand, as Earl contends, for the proposition that a negligent hiring or
retention claim is not redundant to a vicarious liability claim when an employee undisputedly acts
within the scope of employment in committing the wrongful act. Again, the vicarious liability
claim in Carlsen was not before us on appeal. Id. at 252 n.4.
III. SECONDARY AUTHORITY
Earl argues that Dold v. Snohomish County, No. 2:20-CV-00383JHC, 2023 WL 1818139,
at 2 (W.D. Wash. Feb. 7, 2023) (court order), an order on reconsideration from the United States
District Court for the Western District of Washington, is instructive here.14 The Dold court sought
to answer whether, under Washington law, there is “outside the scope of employment” element in
negligent retention claims. In Dold, it must be noted, no negligence claim was brought against the
employee that would have triggered vicarious liability on the part of the employer. Id. Within this
context, Dold distinguished Hicks, stating “Hicks answered a different question than the one
presented here.” Id. The court explained,
Unlike in Hicks, there is no direct negligence claim that could give rise to vicarious
liability against the County. Under such circumstances, the Court believes that the
Washington Supreme Court would not adopt a “scope of employment” requirement
12
Referencing Easley v. Apollo Detective Agency, Inc., 69 Ill. App. 3d 920, 387 N.E.2d 1241
(1979) and Welsh Manufacturing, Division of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d 436 (R.I.
1984).
13
We note that “Washington courts uniformly have held as a matter of law that an employee’s
intentional sexual misconduct is not within the scope of employment.” Evans, 195 Wn. App. at
38.
14
We note that “[f]ederal cases are not binding on this court, which is ‘free to adopt those theories
and rationale which best further the purposes and mandates of our state statute.’ ” Kumar v. Gate
Gourmet, Inc., 180 Wn.2d 481, 491, 325 P.3d 193 (2014) (quoting Grimwood v. Univ. of Puget
Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988), overruled in part by Mikkelsen v. Pub.
Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 404 P.3d 464 (2017)).
24
No. 59220-7-II
for negligent retention claims, at least in cases where there is no remaining claim
for vicarious liability.
Id. (emphasis added). Even if Dold were binding on this court, the facts in Dold are distinguishable
from those in Earl’s case because Dold did not involve a vicarious liability claim. We therefore
find Dold unhelpful and unpersuasive.15
IV. EARL’S ARGUMENTS AND THE CERTIFIED QUESTION
The certified question asks:
Is a claim for negligent retention actionable where the Plaintiff has asserted claims
which, if proven, would impose liability against the employer under the doctrine of
respondeat superior and where there is no allegation that the employees were acting
outside the course and scope of their employment at the time of the alleged tortious
conduct?
CP at 826.
Earl contends that the claim of negligent retention is actionable by focusing on the wrong
question, to wit, whether the tort of negligent retention contains an “outside the scope of
employment” element. See generally Br. of Resp’t at 12-44. But the certified question does not ask
what the elements are of negligent retention. Rather, it asks whether the negligent retention claim
is “actionable,” meaning, not redundant or superfluous, when coupled with a vicarious liability
15
We also disagree with Dold’s analysis. Relying on Anderson, the court stated that “the test
adopted in Anderson does not require that the employee's conduct occur outside the scope of
employment.” Dold, 2023 WL 1818139, at 2. The court continued: “Reading Anderson as a whole,
the most reasonable inference is that the Washington Supreme Court would not adopt an ‘outside
the scope of employment’ requirement for negligent retention claims.” Id. In reaching this
conclusion, the Dold court ignores key language from Anderson. As we noted above, the Anderson
court explicitly stated that even if Anderson succeeded in presenting a genuine issue of material
fact regarding her negligence claims, the court would still need to determine whether the coach
was acting within the scope of employment, “because an action based on negligent training and
supervision ‘is applicable only when the [employee] is acting outside the scope of his
employment.’ ” Anderson, 191 Wn.2d at 361 (alteration in original).
25
No. 59220-7-II
claim in which there is no question that the employee was acting within the scope of employment
during commission of the negligent act.
The cases outlined above plainly answer this question in the negative. We hold that a claim
for negligent retention is redundant and not actionable in cases where the following two factors
are present: (1) the plaintiff brings a negligence claim against an employee as well as a vicarious
liability claim against the employer, and; (2) there is no genuine issue of material fact that the
employee acted within the scope of employment in the commission of the allegedly negligent act
(either because the employer admits the employee acted within the scope of employment or a
reasonable fact finder could reach but one answer to this question).16, 17
Logically, there is no need to pursue a claim for negligent retention when, as Earl concedes,
the negligent retention claim against the City depends on the jury finding that Joseph acted
16
G.M. v. Olympia Kiwanis Boys Ranch, 30 Wn. App. 2d 685, 692, 548 P.3d 548, review denied,
3 Wn.3d 1024 (2024) (“Issues of fact may not be resolved on summary judgment unless, based on
the evidence presented, reasonable minds can reach only one conclusion.”).
17
Earl points us to 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL
15.04 (7th ed. 2022) (WPI), for support, stating “If Tacoma's argument that Earl cannot proceed
simultaneously on both vicarious liability and employer liability for its own negligence were to be
accepted, that would render WPI 15.04 utterly meaningless in all cases where the concurrent
tortfeasors were a negligent employee and a negligent employer.” Br. of Resp’t at 50. But Earl
ignores the note included with this instruction, which states: “Do not use this instruction if the
third person was acting as an agent of either the plaintiff or defendant.” WPI 15.04. As the note
indicates, this instruction does not apply to Earl’s negligent retention claim, as Joseph was acting
as an agent of the City.
26
No. 59220-7-II
negligently—the same finding the jury must make for the vicarious liability claim.18 Moreover,
Earl also concedes that she cannot recover additional damages on the negligent retention claim
should the jury make the necessary finding that Joseph acted negligently (which will trigger the
City’s vicarious liability). Thus, Earl effectively concedes she can get no additional benefit out of
the negligent retention claim in light of her decision to pursue a negligence claim against Joseph.
The negligent retention claim Earl seeks to pursue is superfluous to the vicarious liability
claim in light of there being no question that Joseph was acting within the scope of his employment
in the commission of the allegedly negligent act and we hold that she cannot pursue this claim
alongside her vicarious liability claim.
18
During oral argument, Earl’s counsel cited negligent training as an example of a claim that can
coexist with a claim of negligence when the employer would also be vicariously liable. Negligent
training is a unique claim that stands in contrast to negligent hiring, retention, and supervision
claims. Whereas a negligent hiring, retention, or supervision claim depends upon a finding that the
employee acted negligently—a key feature that renders these claims redundant when brought
alongside a negligence claim in which the employee acted within the scope of employment—a
negligent training claim against the employer can survive even where the trier of fact determines
the employee did not act negligently. Consider, for example, a law enforcement officer who
accidentally causes the death of a pedestrian during a pursuit. If the officer had been trained to
conduct a pursuit in spite of traffic conditions that would render it dangerous to do so, and followed
that training to the letter in conducting the pursuit that resulted in the death of the pedestrian, a
jury could reasonably conclude that the officer was not negligent. It does not follow, however, that
the employer should escape liability for training that is arguably negligent and was the proximate
cause of the pedestrian’s death. Although counsel for Earl was correct in identifying negligent
training as a unique type of claim that is potentially not susceptible to a finding of redundancy
when the employee acted within the scope of employment, this has no bearing on the claim at issue
here.
27
No. 59220-7-II
CONCLUSION
We hold that Earl’s negligent retention claim fails as a matter of law because it is
superfluous in light of the fact that Joseph was acting within the scope of employment and Earl
was therefore able to bring a vicarious liability claim against the City regarding Joseph’s allegedly
negligent conduct. We reverse the superior court’s decision allowing Earl to amend her complaint
to add a claim of negligent retention.
CRUSER, C.J.
We concur:
MAXA, J.
GLASGOW, J.
28