Earl v. Campbell: Negligent Retention May Be Pleaded with Vicarious Liability; Scope of Employment Not an Element

1. Introduction

In Earl v. Campbell (Wash. Sept. 3, 2026), the Supreme Court of Washington addressed whether a plaintiff may pursue a direct negligence theory against a municipal employer—negligent retention—in the same lawsuit as a derivative theory—vicarious liability—when the employer concedes the employee officers were acting within the scope of employment.

The case arises from the 2016 fatal shooting of Jacqueline Salyers during the attempted execution of an arrest warrant by Tacoma police officers Scott Campbell and Aaron Joseph. The plaintiff, Lisa Earl, on behalf of family members and the estate, initially alleged negligence against Officer Campbell and vicarious liability against the City of Tacoma. After discovery, Earl sought to amend to add allegations involving Officer Joseph and a negligent retention claim against the City based on information Earl allegedly learned about prior domestic violence allegations against Joseph and the City’s earlier awareness of unfitness.

The trial court granted leave to amend and reopened discovery. On interlocutory review, the Court of Appeals reversed, holding that where an employer concedes scope of employment, negligent retention is “superfluous” to vicarious liability and cannot be maintained. The Supreme Court reversed the Court of Appeals and reinstated the amendment.

Key issue

Whether a plaintiff may plead and maintain both (1) vicarious liability for an employee’s tort committed within the scope of employment and (2) negligent retention as a direct claim against the employer—and whether scope of employment is part of the negligent retention analysis.

2. Summary of the Opinion

The Supreme Court held:

  • Negligent retention and vicarious liability are separate, analytically distinct causes of action and may be pleaded and maintained in the same case.
  • A scope-of-employment inquiry is not part of Washington’s negligent retention analysis; an employer’s direct liability for negligent retention is not limited by whether the employee acted within or outside the scope of employment.
  • To the extent Court of Appeals decisions had adopted or implied an “outside the scope” requirement for negligent retention, they are disavowed and overruled.
  • At the pleading/amendment stage, Earl’s allegations were sufficient to maintain the negligent retention claim; concerns about prejudice, evidentiary admissibility, and double recovery are managed through normal trial tools (e.g., evidentiary rulings, jury instructions, special verdict forms).

3. Analysis

3.1 Precedents Cited

Earl v. Campbell, 34 Wn. App. 2d 632, 570 P.3d 392 (2025)

The Court of Appeals treated negligent retention as redundant where the City conceded scope of employment, effectively converting the concession into a bar on direct liability. The Supreme Court rejected that framing, emphasizing Washington pleading rules and the distinct nature of direct negligence claims.

Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 442 P.3d 608 (2019)

This was the opinion’s central pleading-law anchor. In Beltran-Serrano, the court refused to force a plaintiff to choose between negligence and intentional tort theories based on a defendant’s characterization of the facts (there, an officer’s shooting). The court recognized that the “set of circumstances” may include conduct leading up to the shooting and that Washington’s rules permit alternate or inconsistent pleading.

Influence here: The Supreme Court used Beltran-Serrano to reject Tacoma’s argument that the City’s scope-of-employment concession should narrow the plaintiff’s permissible theories. The opinion treats the negligent retention claim as involving a broader and temporally distinct set of facts (the City’s earlier retention decision) than the vicarious liability claim (the officers’ conduct during the incident).

Niece v. Elmview Grp. Home, 131 Wn.2d 39, 929 P.2d 420 (1997)

Niece supplies two different strands of doctrine that the parties and Court of Appeals drew upon:

  • The scope-of-employment limitation applies to vicarious liability (an employer is not vicariously liable when the employee acts outside scope).
  • Direct liability theories (e.g., negligent protection in a special relationship) can be grounded in an employer’s own breach of duty, driven by foreseeability, not by scope-of-employment boundaries.

The Court of Appeals relied on Niece for a redundancy/overlap concept (where two direct-liability theories “completely overlapped,” one could be dismissed). The Supreme Court distinguished Niece: the overlap in Niece was between two direct theories aimed at the same protective duty and incident, whereas here the plaintiff pleaded (i) derivative vicarious liability for incident-time conduct and (ii) direct negligent retention based on earlier retention decisions.

Anderson v. Soap Lake Sch. Dist., 191 Wn.2d 343, 423 P.3d 197 (2018)

Anderson was used to define the elements and proof concepts for negligent retention: the employer must know of unfitness or fail to use reasonable care to discover unfitness; liability is direct and depends on foreseeability and what the employer knew or should have known.

Influence here: The court invoked Anderson to underscore that negligent retention is about the employer’s knowledge and decision-making process. While Anderson failed on evidence at summary judgment, this case was at the pleading/amendment stage, and the allegations that the City had information suggesting unfitness were sufficient to proceed.

Matsuda v. Hammond, 77 Wash. 120, 137 P. 328 (1913) and Estes v. Brewster Cigar Co., 156 Wash. 465, 287 P. 36 (1930)

Tacoma cited these cases to suggest scope-of-employment principles foreclose negligent retention when scope is conceded. The Supreme Court rejected that usage: these cases stand for the traditional proposition that an employer is not vicariously liable for employee acts outside scope, not that direct employer negligence claims require “outside scope” conduct.

The opinion also notes Estes v. Brewster Cigar Co. was “overruled in part by Mancini v. City of Tacoma, 196 Wn.2d 864, 479 P.3d 656 (2021),” further weakening any attempt to read Estes expansively.

La Lone v. Smith, 39 Wn.2d 167, 234 P.2d 893 (1951)

The City relied on La Lone, but the Supreme Court found it inapposite: it did not involve a vicarious liability claim, and it turned on a principal/agent theory supporting direct liability where the employer knew of an employee’s propensity to assault on the premises. The case did not establish a scope-of-employment barrier to negligent retention.

Hicks v. Klickitat County Sheriff's Office, 23 Wn. App. 2d 236, 515 P.3d 556 (2022) and Evans v. Tacoma School District No. 10, 195 Wn. App. 25, 380 P.3d 553 (2016)

These Court of Appeals decisions had been read to impose or imply an “outside the scope” requirement for direct-liability claims like negligent retention. The Supreme Court expressly disavowed and overruled them (and any similar cases) to the extent they concluded or implied that negligent retention is nonviable when employees act within the scope of employment.

Doctrinal significance: This is the opinion’s clearest lawmaking move. It eliminates an appellate-court line of authority that had functionally forced plaintiffs into a single-path theory (respondeat superior) whenever scope was conceded.

Shielee v. Hill, 47 Wn.2d 362, 287 P.2d 479 (1955)

Amici for the City invoked Shielee to argue negligent retention/training theories are mutually exclusive with vicarious liability. The Supreme Court rejected that reading: Shielee concerned jury instructions in an elevator accident case and the distinction between “negligence” and “incompetence/inexperience,” and it did not involve a pleaded negligent training claim. It did not establish a doctrinal bar on concurrent theories.

Gerlach v. Cove Apts., LLC, 196 Wn.2d 111, 471 P.3d 181 (2020)

The Supreme Court cited Gerlach as a reminder that trial courts retain robust authority to weigh probative value versus prejudicial effect. This was used to answer the City’s concern that negligent retention allegations (including about expunged charges) would inevitably taint trial.

Restatements

  • RESTATEMENT (SECOND) OF TORTS § 307: negligence to use an instrumentality (including a human being) known or reasonably known to be incompetent such that use creates unreasonable risk.
  • RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 41 cmt. e: employer owes third parties a duty of reasonable care regarding risks posed by employees that arise within the scope of the employment relationship—supporting the point that direct liability is not confined by “scope of employment” in the respondeat superior sense.

Influence here: The Restatement citations reinforce the conceptual separation between (a) derivative liability premised on an employee’s tort in scope and (b) direct negligence premised on the employer’s unreasonable risk creation/allowance through retention.

3.2 Legal Reasoning

A. The procedural lens: pleading and amendment, not merits

The Supreme Court repeatedly situates the case as being at the pleading stage, reviewing a trial court’s decision to grant leave to amend. That matters because the City’s arguments about evidentiary prejudice and the ultimate causal nexus were, in the court’s view, premature.

The opinion also notes discovery was reopened and the new claim relates back under CR 15(c), underscoring that the amendment was treated as part of the same litigation nucleus rather than a wholly new suit.

B. CR 8 and the permissibility of alternate/inconsistent theories

The opinion grounds its holding in Washington’s liberal pleading regime:

  • CR 8(a) requires a short, plain statement showing entitlement to relief and a demand for judgment.
  • CR 8(e)(2) expressly permits pleading two or more statements “alternately or hypothetically” and allows “as many separate claims … regardless of consistency.”

The court treats Tacoma’s argument—“theories are alternative and mutually exclusive” and “same facts support both”—as precisely the sort of forced election CR 8 rejects. The defendant’s preferred characterization of the facts (or concession on one element of one theory) does not control the plaintiff’s menu of claims.

C. The doctrinal separation: derivative vs. direct liability

The court draws a clean analytic line:

  • Vicarious liability is derivative; it attaches to the employer without the employer’s own fault when an employee commits a tort within the scope of employment.
  • Negligent retention is direct; it targets the employer’s own negligence in retaining an employee known (or reasonably discoverable) to be unfit, where that retention foreseeably creates risk and causes harm.

This separation does most of the work. Once negligent retention is understood as direct negligence, the City’s “scope concession” becomes largely irrelevant. Scope-of-employment is a boundary concept for respondeat superior, not a definitional element of negligent retention.

D. Redundancy doctrine limited: distinguishing Niece

The Supreme Court cabined the overlap concept from Niece v. Elmview Grp. Home. Overlap can justify dismissal where two direct-duty theories truly “completely overlap” around the same duty and incident. But the court found no such overlap here because:

  • the vicarious claim turns on incident-time conduct and imputed fault from the officers,
  • the negligent retention claim turns on earlier employer knowledge/decision-making and employer fault,
  • the theories attribute fault to different actors and potentially different time frames and evidentiary showings.

E. Fault allocation and double recovery concerns addressed through trial administration

The court found support in RCW 4.22.070(1), which requires the fact finder to allocate “percentage of the total fault” among entities that caused the claimant’s damages (subject to immunity exceptions). The court reasoned that concurrent claims fit the statute because:

  • in vicarious liability, fault lies with the employee (imputed to employer);
  • in negligent retention, fault lies with the employer’s own acts/omissions.

The court also rejected the City’s “double recovery” concern as manageable: plaintiffs may not recover twice for the same harm, and the system prevents it via jury instructions, special verdict forms, and posttrial motions (citing pattern instructions practice).

F. Evidentiary prejudice is not a pleading-stage bar

The City warned the negligent retention claim would inject prejudicial allegations (including “expunged criminal charges”) unrelated to the shooting. The Supreme Court’s answer was procedural and institutional:

  • survival of a claim does not override evidentiary rules;
  • trial courts can exclude or limit unfairly prejudicial evidence (with Gerlach v. Cove Apts., LLC as an example);
  • it is too early—at amendment stage—to decide how evidence will come in or how it will be used.

3.3 Impact

A. Restoring (and strengthening) direct-liability pathways against employers

The decision prevents a vicarious-liability concession from functioning as a shield against direct negligence claims. Practically, defendants (public and private) can no longer argue: “We concede scope; therefore you may not pursue negligent retention.” This expands plaintiffs’ ability to:

  • seek accountability for institutional decision-making (screening, retention, discipline);
  • obtain discovery and present proof of employer knowledge and policies, where relevant to direct negligence;
  • pursue theories that may matter to fault allocation, settlement dynamics, and—in some cases—insurance or indemnity disputes.

B. Specific significance for policing and municipal litigation

In police-involved injury/death cases, municipalities commonly concede scope to secure indemnity clarity and avoid disputes over whether an officer was on-duty. Under the now-overruled “outside scope” approach, such a concession could simultaneously suppress claims aimed at prior retention decisions. Earl rejects that linkage and clarifies that negligent retention focuses on the City’s earlier knowledge and conduct—issues often central to public accountability.

C. Doctrinal cleanup: overruling Court of Appeals decisions

By expressly disavowing and overruling Hicks v. Klickitat County Sheriff's Office and Evans v. Tacoma School District No. 10 (and similar cases to the extent they imposed an “outside scope” requirement), the Supreme Court removes a recurring defense argument at the motion-to-dismiss and summary judgment stages. Future appellate disputes will likely shift from categorical bars to the traditional negligent retention questions:

  • what the employer knew or should have known,
  • what reasonable steps were required,
  • foreseeability and proximate cause,
  • evidentiary admissibility and prejudice management.

D. Pleading practice and litigation strategy

The opinion invites broader use of CR 8’s alternative pleading in Washington tort litigation. Plaintiffs can plead both derivative and direct theories without fear that one “cancels” the other at the pleading stage. Defendants, conversely, may focus more on:

  • targeted motions in limine and evidence rules to control prejudice,
  • summary judgment on knowledge/foreseeability/proximate cause,
  • careful verdict form drafting to prevent duplicative damages.

4. Complex Concepts Simplified

  • Vicarious liability (respondeat superior): The employer pays for the employee’s tort if it happened while the employee was doing the job (within “scope of employment”), even if the employer itself did nothing wrong.
  • Negligent retention: The employer is sued for its own negligence in keeping an employee it knew (or should have discovered) was unfit, when that decision foreseeably creates risk and causes harm.
  • Scope of employment: A boundary concept for vicarious liability—whether the employee was acting in service of the job. In Earl, the court held this is not an element that limits negligent retention.
  • Alternative/inconsistent pleading (CR 8(e)(2)): A plaintiff can plead multiple theories, even if they don’t perfectly fit together, and later prove whichever the evidence supports.
  • Proximate cause: The legal causation link between wrongful conduct and injury. The opinion notes proximate cause was not at issue on review.
  • Relates back (CR 15(c)): An amended claim can be treated as part of the original filing for timeliness purposes when it arises from the same conduct, transaction, or occurrence.
  • Double recovery: A plaintiff cannot be paid twice for the same injury. The court emphasized this is prevented through trial mechanisms rather than by forbidding overlapping legal theories at the outset.

5. Conclusion

Earl v. Campbell establishes a clear Washington rule: negligent retention and vicarious liability may be pleaded and maintained together, and scope of employment is not part of the negligent retention analysis. Anchored in CR 8 and reinforced by Beltran-Serrano v. City of Tacoma, the decision rejects forced elections between theories and prevents scope concessions from insulating employers against claims targeting their own negligent employment decisions.

The opinion’s broader significance lies in its doctrinal cleanup—expressly overruling Court of Appeals authority to the extent it imposed an “outside scope” requirement—and in its practical reorientation of employer-liability litigation toward the merits of employer knowledge, foreseeability, and causation, rather than categorical pleading-stage exclusions.