Washington Supreme Court Allows Negligent Retention and Vicarious Liability Claims to Proceed Together

Seyfarth Synopsis:  A recent Washington Supreme Court decision gives employers a new reason to pay close attention to how they document and defend personnel decisions. In Earl v. Campbell, No. 104495-0, 2026 WL 2603639 (Wash. Sept. 3, 2026), the court ruled that a negligent retention claim may move forward even when an employer acknowledges that it may be responsible for an employee’s conduct within the scope of employment. Importantly, the court decided only that the claim could proceed at the pleading stage—it did not find that the employer was negligent or that the plaintiff would ultimately prevail. Even so, the decision means employers may need to defend both the employee’s alleged conduct and the employer’s decision to retain the employee.

Although Earl involved a law enforcement incident, its reasoning applies more broadly. Employers in any industry should expect plaintiffs to cite the decision when challenging why an employer continued to employ someone who allegedly presented a foreseeable risk of harm.

Why This Decision Matters

Employers have often argued that a negligent retention claim adds little when the employer already accepts that it may be responsible for an employee’s on-the-job conduct. Under that view, a second claim focused on the employer’s personnel decisions adds cost and complexity without changing the potential recovery.

The Washington Supreme Court rejected that approach. It explained that the two claims ask different questions. Vicarious liability asks whether the employer is responsible for the employee’s conduct. Negligent retention asks whether the employer knew, or should have known, that the employee posed a foreseeable risk and nevertheless kept the employee in the position. Because each claim focuses on different conduct, both may proceed in the same case.

The Court’s Decision

The plaintiff claimed that the City of Tacoma kept a police officer on the job despite information that allegedly raised concerns about the officer’s fitness for continued employment. The City responded that the negligent retention claim should be dismissed because the officer was acting within the scope of employment when the incident occurred.

The trial court allowed the plaintiff to add the negligent retention claim, but the Court of Appeals reversed that decision. The Washington Supreme Court reinstated the claim. It held that, at the pleading stage, the claim could proceed even though the City acknowledged that the officer was acting within the scope of employment. The court also overruled earlier Court of Appeals decisions that had reached the opposite result.

What This Means for Employers

The immediate takeaway is not simply that another claim may remain in the case. A negligent retention claim can also expand what the employer must disclose and defend during litigation.

Instead of focusing only on the incident that led to the lawsuit, discovery may reach earlier complaints, investigations, discipline, performance concerns, and related employment decisions. Plaintiffs may use that information to argue that the employer had warning signs and should have acted differently.

As a result, the employer’s process may receive as much attention as the employee’s alleged conduct. Clear records showing how complaints were investigated, what information decision-makers considered, why particular corrective action was chosen, and why employment continued can be especially important.

Managing Risk After Earl

Earl is a useful reminder that an employer may need to explain not only what an employee did, but also how the employer responded to earlier concerns. Employers can reduce that risk by focusing on the following practices:

• Document complaints, investigation steps, findings, discipline, and performance concerns as they arise.
• Use a consistent process for investigating workplace complaints and explain any departure from that process.
• When concerns are substantiated, record what decision-makers considered, why a particular response was selected, and whether follow-up monitoring is needed.
• Reassess continued employment when an employee is the subject of serious or repeated complaints, investigations, or corrective action.
• Involve counsel early when allegations suggest that an employee may have posed a foreseeable risk of harm, including to assess preservation, privilege, and discovery issues.
• Periodically review investigation, discipline, and retention practices to confirm that decisions are documented and applied consistently.