The Washington Supreme Court issued a unanimous decision on Thursday, affirming that a family member can pursue a negligence lawsuit against a municipality for retaining a police officer, even when the city acknowledges the officer was performing official duties at the time of an incident. This ruling overturns a 2025 decision by the Court of Appeals and returns the matter to Pierce County Superior Court for further proceedings.
The case, designated as No. 104495-0, centers on the 2016 fatal shooting of a 32-year-old Puyallup Tribe member by a Tacoma police officer. In that incident, the officer and a colleague were executing an arrest warrant for a passenger in the victim’s vehicle. While the Pierce County Prosecutor’s Office later determined the use of force was lawful under state statutes, the victim’s mother has sought legal recourse on behalf of the estate and other relatives.
Initially, the plaintiff filed suit in federal court under 42 U.S.C. § 1983, accompanied by state tort claims. After the federal court dismissed the § 1983 claim on summary judgment, the state claims were dismissed without prejudice, allowing the plaintiff to refile in state court.
During the discovery phase in state proceedings, the plaintiff identified new evidence suggesting the second officer involved in the shooting had also contributed to the death. Furthermore, she uncovered records indicating the department had prior knowledge of domestic violence allegations against that second officer, leading to the assertion that the city was aware of his potential unfitness for service years before the shooting occurred.
The plaintiff subsequently moved to amend her complaint. She sought to add the second officer to existing negligence and vicarious liability counts and to introduce a new claim alleging that the city negligently retained him despite its knowledge of the prior allegations. In July 2023, Pierce County Superior Court Judge Shelly Speir granted the motion and reopened discovery. The city appealed, and the trial court certified the legal question to the appellate court, which initially reversed the lower court's decision.
The Court of Appeals had previously held that a plaintiff cannot maintain a negligent retention claim against an employer if that employer concedes the employee was acting within the scope of employment while bringing a vicarious liability claim. The city argued in the Supreme Court that these two theories were mutually exclusive alternatives resting on identical facts, contending that vicarious liability necessitates the employee was on duty, thus implying a negligent retention claim required the employee to be off duty.
The Supreme Court rejected this interpretation. Writing for the court, Justice Charles W. Johnson explained that vicarious liability holds an employer indirectly accountable for an employee's torts committed during work, regardless of whether the employer itself engaged in misconduct. The high court overruled previous Court of Appeals precedents to the extent they suggested or held that a negligent retention claim fails when the employee is acting within the scope of employment. Justice Johnson noted that such a rule lacked support in existing case law.
The Washington Supreme Court ruled on Thursday that an employer can be held directly liable for negligent retention, even if the employee was acting within the scope of their job duties when the harm occurred. Justice Christine Johnson, writing for the majority, clarified that this theory of liability is separate from vicarious liability, meaning the traditional limits of employment scope do not shield an employer that failed to protect the public from a known or reasonably foreseeable unfit employee.
The decision centers on a lawsuit brought by a Tacoma woman against the City of Tacoma following a police shooting. The city had argued that because the officer’s use of force was an intentional act within his employment, a negligence claim regarding the city’s hiring and retention practices should be dismissed as duplicative. The Supreme Court rejected this argument, relying on Civil Rule 8, which permits plaintiffs to plead multiple claims regardless of whether they are consistent. The court cited its 2019 ruling in *Beltran-Serrano v. City of Tacoma*, where it previously determined that an officer’s intentional shooting could coexist with a negligence claim against the city.
Justice Johnson emphasized that the two legal theories address different failures. The vicarious liability claim focuses on the specific actions taken by the officer during the incident, while the negligent retention claim examines the city’s alleged failure to act years prior to the shooting. Because these claims stem from distinct negligent acts, the court concluded they are not superfluous.
In reaching its decision, the court distinguished the current case from the 1997 appellate ruling in *Niece v. Elmview Group Home*. In *Niece*, the lower court dismissed a negligent supervision claim because it was essentially the same as a negligent protection claim arising from the same incident. The Supreme Court noted that this is different from the present situation, where the claims involve separate timeframes and distinct duties of care.
The court also partially overruled two prior Court of Appeals decisions, *Hicks v. Klickitat County Sheriff's Office* (2022) and *Evans v. Tacoma School District No. 10* (2016), to the extent that those rulings suggested negligent retention claims were invalid when an employee was acting within the scope of employment.
However, the opinion is limited to the pleading stage of the litigation. The court stressed that the factual record is not yet developed and that the plaintiff’s amended complaint adequately alleges that the city possessed information suggesting the officer was unfit for duty. The determination of whether the plaintiff can ultimately prove these facts, as well as issues of proximate cause, will be left to the trial court.
The court also addressed the city’s concern that allowing the claim to proceed would introduce prejudicial evidence regarding expunged criminal charges against the officer. Justice Johnson stated that the ruling does not override standard rules of evidence or limit the trial judge’s ability to instruct the jury, noting that such evidentiary disputes are best resolved on remand.
Finally, the court dismissed the city’s worry that the plaintiff might recover damages twice for the same injury. The opinion noted that while a plaintiff can only recover once for a specific harm, tools such as jury instructions, special verdict forms, and post-trial motions are sufficient to prevent duplicate awards. Justice Johnson described the city’s concern about double recovery as unfounded at the current stage of the case.
A broad array of third-party groups filed briefs in support of the appellant. These entities included the Washington Coalition for Police Accountability, the Center for Civil Rights and Critical Justice, and the Northwest Center for Indigenous Law. Additional backing came from the Seattle chapter of the National Lawyers Guild, the Sexual Violence Law Center, and the Coalition Ending Gender-Based Violence. The Washington State Coalition Against Domestic Violence/Sexual Assault, the Washington State Association for Justice Foundation, and Professor David B. Owens also submitted arguments in favor of the plaintiff.
On the opposing side, the State of Washington filed a brief supporting the municipal defendant. The Washington Cities Insurance Authority and the Washington Counties Risk Pool, which provide insurance coverage for numerous local governments across the state, also endorsed the city’s position.
The Washington State Association for Justice Foundation contended that permitting both legal theories aligns with the state’s comparative fault law, specifically RCW 4.22.070. This statute requires juries to distribute responsibility among all parties that contributed to the injury.
The appellate court accepted this reasoning. It distinguished between the two theories by noting that in a vicarious liability action, the responsibility attaches to the specific employee, whereas in a negligent retention claim, the responsibility lies with the employer entity.
What Happens Next
The lawsuit will now return to Pierce County Superior Court. Discovery proceedings regarding the negligent retention allegation had been reinstated prior to the appeal.
The municipal defendant has not admitted to retaining the officer negligently and retains the right to dispute the claim based on the specific facts of the case.