Background
Jacqueline Salyers was fatally shot in 2016 by Tacoma police officer Scott Campbell while Campbell and officer Aaron Joseph were attempting to execute an arrest warrant for a passenger in Salyers’s car. Lisa Earl, suing individually and for Salyers’s family members and estate, alleged that Campbell acted negligently and that the City of Tacoma was vicariously liable because he acted within the scope of his employment.
After discovery closed, Earl obtained information that led her to allege that Joseph’s conduct also contributed to the shooting and that prior domestic-violence allegations had alerted the City years earlier that he was unfit to serve as a police officer. The trial court allowed Earl to amend her complaint to add claims involving Joseph, including a negligent-retention claim against the City, and reopened discovery. On discretionary interlocutory review, the Court of Appeals held that the negligent-retention claim could not accompany a vicarious-liability claim once the City conceded that the officers acted within the scope of employment.
The Court’s Holding
The Washington Supreme Court reversed. It held that negligent retention and vicarious liability are analytically distinct causes of action that may be maintained in the same case. Vicarious liability imposes indirect liability on an employer for an employee’s tort within the scope of employment, while negligent retention imposes direct liability for the employer’s own failure to remove an employee whom it knew, or through reasonable care should have known, was unfit.
The court held that an employee’s scope of employment is not an element of negligent retention and that an employer’s concession on scope does not bar the claim. Washington Civil Rule 8 permits alternative or inconsistent theories, and Earl alleged different negligent conduct occurring at different times: Joseph’s conduct surrounding the shooting and the City’s alleged failure years earlier to terminate him despite information indicating unfitness. At this pleading stage, that allegation permitted the negligent-retention claim to proceed. Although Earl asserted that negligent retention proximately caused Salyers’s death, proximate cause was expressly not at issue in this review.
The court disavowed and overruled Court of Appeals decisions to the extent they held or implied that negligent-retention claims are unavailable when an employee acts within the scope of employment. It also rejected concerns about prejudicial evidence and double recovery as reasons to bar the pleading, explaining that evidentiary rulings, jury instructions, special verdict forms, and posttrial motions can address those issues later. The court reinstated the trial court’s order granting leave to amend and remanded for further proceedings.
Key Takeaways
- Under Washington law, an employer’s admission that an employee acted within the scope of employment does not foreclose a negligent-retention claim.
- Negligent retention concerns the employer’s own alleged negligence, whereas vicarious liability attributes the employee’s tort to the employer without requiring employer fault.
- CR 8 permits plaintiffs to plead separate, alternative, or inconsistent theories, while evidentiary safeguards and verdict procedures can prevent unfair prejudice or double recovery.
Why It Matters
The decision removes a significant pleading barrier in Washington employment-liability cases. Plaintiffs may pursue both an employee-based vicarious-liability theory and a direct claim that the employer negligently retained an unfit employee, even when the employer concedes scope of employment.
The ruling is particularly important in police-misconduct litigation because it permits scrutiny of a municipality’s own retention decisions alongside the conduct of individual officers. It does not decide whether Earl can ultimately prove unfitness, notice, causation, admissibility of particular evidence, or entitlement to damages; those matters remain for proceedings on remand.