Washington Supreme Court hears challenge over negligent-retention claims in Lisa Earl v. City of Tacoma

The Washington State Supreme Court heard argument Thursday in Lisa Earl v. City of Tacoma over whether a negligent-retention claim can proceed when plaintiffs also assert vicarious liability against the employer.

Petitioner’s counsel, James Loebson, told the court that applying Restatement (Second) §307 permits negligent-retention claims "irrespective of whether" the employee acted within the scope of employment and that affirming the Court of Appeals would require rejecting several precedents. "This court has never said that a negligent retention or negligent hiring claim requires proof that the employee was acting outside the scope of his employment," Loebson said, asking the justices to allow both direct and vicarious theories to go to a jury.

The issue matters, counsel and amicus said, because Washington’s comparative-fault statutes require apportionment of fault among entities and because allowing negligent-retention claims can admit evidence of employer misconduct or prior employee incidents that plaintiffs say are relevant to notice and foreseeability. Valerie McComie, appearing for the Washington State Association for Justice Foundation as amicus, urged the court to answer "yes" to whether negligent-retention claims are actionable alongside vicarious-liability claims, arguing that trial courts have tools — special verdict forms, jury instructions and bifurcation — to prevent double recovery while preserving the jury’s ability to apportion fault.

Respondents’ counsel Ken Masters countered that the certified question is narrow and that permitting parallel claims when vicarious liability is, or will be, treated as effectively conceded would be "grossly unjust." He told the court, "We are 100% liable for any negligence of our employees," and warned that allowing both claims can mislead juries, invite irrelevant evidence about unrelated misconduct, and create practical problems for allocating damages and insurance recovery.

At argument the justices pressed both sides on precedents — including Shiley, Anderson and LaPlante — the impact of adopting Restatement (Third) approaches, and whether special verdict forms or bifurcation could manage the risks the respondents cited. Several justices explored whether proximate-cause principles or the timing of alleged misconduct (for example, discipline or retention decisions years earlier) should determine whether negligent-retention claims survive a motion to dismiss or must wait for trial-stage fact-finding.

In rebuttal, Loebson emphasized that vicarious liability had not been conceded in the underlying record, that multiple acts by the officer could give rise to proximate cause, and that discovery had been limited after late disclosure of prior incidents; he said the case’s facts — including allegations that the employer knew of prior domestic-violence and firearm-access risk factors — made it premature to bar negligent-retention claims now.

The court took the case under submission and recessed for 10 minutes. No decision was announced at the argument session.

If the court rules for petitioners, trial courts could routinely permit negligent-retention claims to proceed in tandem with vicarious-liability theories; if it rules for respondents, plaintiffs may be limited to vicarious-liability theories or required to make earlier procedural choices about which claims to pursue.

The high court heard two cases that morning; this was the first argument and was submitted at the conclusion of counsel’s remarks.