Dold v. Snohomish Cnty., 2:20-cv-00383-JHC

• Court: United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
• Writing for the Court: John H. Chun, United States District Judge
• Parties: JENNIFER DOLD, ET AL., Plaintiffs, v. SNOHOMISH COUNTY, ET AL., Defendants.
• Docket Number: 2:20-cv-00383-JHC
• Decision Date: 07 February 2023

JENNIFER DOLD, ET AL., Plaintiffs,
v.
SNOHOMISH COUNTY, ET AL., Defendants.

No. 2:20-cv-00383-JHC

United States District Court, W.D. Washington, Seattle

February 7, 2023

ORDER RE: MOTIONS FOR RECONSIDERATION AND MOTION TO BIFURCATE

John H. Chun, United States District Judge

I

Introduction

Pending before the Court are three motions: (1) Snohomish County's motion for reconsideration on the negligent retention claim (Dkt. # 137), and (2) Plaintiffs' motion for reconsideration on their warrantless entry claim (Dkt. # 141), and (3) Defendants' motion to bifurcate (Dkt. # 139). The motions for reconsideration ask the Court to reconsider its conclusions in its previous order (Dkt. # 134) and accompanying memorandum opinion (Dkt. # 135).^[1]

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For the reasons below, the Court DENIES the three motions.

II

Discussion

A. Motion for Reconsideration of the Negligent Retention Claim

The County asks the Court to reconsider its earlier ruling denying its summary judgment motion on the negligent retention claim. Dkt. # 137. The County's motion for reconsideration makes two arguments. First, the County argues that the Court failed to recognize that a negligent retention claim requires that the employee's wrongful conduct occur “outside the scope of employment.” Second, the County challenges the admissibility of the evidence relied on by Plaintiffs to create a genuine dispute of material fact.

1. “Scope of Employment” Issue

The County primarily contends that the Court ignored a mandatory element of a negligent retention claim. The County argues that under Washington law, a plaintiff asserting a negligent retention claim must show that the employee was acting “outside the scope of his employment” when they committed the wrongful act that harmed the plaintiff. The Court rejects this argument.

As a federal court considering a question of state law, “we are bound to follow the decisions of the state's highest court.” Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885, 889 (9th Cir. 2021) (quoting Diaz v. Kubler Corp., 785 F.3d 1326, 1329 (9th Cir. 2015)). “[W]hen the state supreme court has not spoken on an issue, we must determine what result the court would reach based on state appellate court opinions, statutes and treatises.” Id. (quoting Diaz, 785 F.3d at 1329).

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While “we look to intermediate appellate courts for guidance, . . . we are not bound by them if we believe that the state supreme court would decide otherwise.” Radcliffe v. Hernandez, 818 F.3d 537, 543 (9th Cir. 2016); see also Miller v. County of Santa Cruz, 39 F.3d 1030, 1036 n.5 (9th Cir. 1994) (“A state appellate court's announcement of a rule of law is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” (citation and quotation marks omitted)).

As described in the Court's prior order, a negligent retention claim holds an employer liable when the employer negligently elects to retain an employee and the employee then commits a wrongful act. To succeed on a negligent retention claim, “a plaintiff must show that the employer had knowledge of the employee's unfitness or failed to exercise reasonable care to discover unfitness before . . . retaining the employee.” Anderson v. Soap Lake Sch. Dist., 191 Wash.2d 343, 356, 423 P.3d 197 (2018) (citation omitted). The plaintiff must also show the employer's retention of the employee was a proximate cause of the plaintiff's injuries. Carlsen v. Wackenhut Corp., 73 Wash.App. 247, 252-53, 868 P.2d 882 (1994). “The difference between negligent hiring and negligent retention is timing. Negligent hiring occurs at the time of hiring, while negligent retention occurs during the course of employment.” Anderson, 191 Wash.2d at 356 (citations omitted). These causes of actions “are based on the concept that the employer's own negligence is a wrong to the injured party, independent from the employer's liability for its employee's negligence imputed by the doctrine of respondeat superior.” Evans v. Tacoma Sch. Dist. No. 10, 195 Wash.App. 25, 47, 380 P.3d 553 (2016).

The County directs the Court's attention to a recent Washington Court of Appeals decision, Hicks v. Klickitat County Sheriff's Off., 23 Wash.App. 2d 236, 515 P.3d 556 (2022). There, a plaintiff sued the Department of Social and Health Services for its negligent retention of

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a social worker, Shirley DeArmond. Id. at 238. The plaintiff alleged that DeArmond negligently investigated a child abuse report. Id. On appeal, the Court of Appeals dismissed the negligent retention claim. The court observed that “[n]egligent retention claims generally arise when an employee is acting outside the scope of their employment.” Id. at 248 (citing Evans, 195 Wash.App. at 47). And “[b]ecause Hicks has failed to allege facts that show DeArmond acted outside the scope of employment, Hicks' negligent retention claim fails as a matter of law.” Id.

The Court acknowledges that some intermediate appellate courts in Washington (like the Hicks court) have imposed an “outside the scope of employment” requirement in negligent retention cases. But this Court must determine how the Washington Supreme Court would decide the question. And while “we look to intermediate appellate courts for guidance, . . . we are not bound by them if we believe that the state supreme court would decide otherwise.” Radcliffe, 818 F.3d at 543. The Court believes that Hicks answered a different question than the one presented here. Unlike in Hicks, there is no direct negligence claim that could give rise to vicarious liability against the County. Under such circumstances, the Court believes that the Washington Supreme Court would not adopt a “scope of employment” requirement for negligent retention claims, at least in cases where there is no remaining claim for vicarious liability.

First, the Washington Supreme Court has never mentioned a “scope of employment” requirement for negligent retention claims. In 2018, the Washington Supreme Court decided Anderson v. Soap Lake School District. 191 Wash.2d 343. In Anderson, the Court noted that “[t]his court has not yet adopted a test for negligent hiring and/or retention of an employee.” Id. at 356. It then “adopt[ed] the test used by the Courts of Appeals: to hold an employer liable for negligently hiring or retaining an employee who is incompetent or unfit, a plaintiff must show that the employer had knowledge of the employee's unfitness or failed to exercise reasonable care to discover unfitness before hiring or retaining the employee.” Id.

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Notably, the test adopted in Anderson does not require that the employee's conduct occur outside the scope of employment. Nor is this omission attributable to oversight. In the next section of the decision, the court considered claims for “negligent training and supervision.” Id. at 360-63. And for those claims, the Court carefully analyzed whether negligent training and supervision claims require that the employee acted outside the scope of employment when committing the wrongful act. Id. Reading Anderson as a whole, the most reasonable inference is that the Washington Supreme Court would not adopt an “outside the scope of employment” requirement for negligent retention claims.

Second, the Washington Supreme Court in Anderson favorably cited the Second Restatement of Torts when discussing the standard for negligent hiring and retention: “It is negligence to use an instrumentality, whether a human being or a thing, which the actor knows or should know to be so incompetent, inappropriate, or defective, that its use involves an unreasonable risk of harm to others.” Restatement (Second) of Torts § 307 (1965); see also Anderson, 191 Wash.2d at 356. The Restatement then provides the following illustration:

A, the proprietor of an apartment house, employs as janitor B, a man whom A knows to be of an exceedingly fiery and violent temper. C, one of A's tenants, complains to B in regard to lack of heat. B becomes violently angry and attacks and harms C. Irrespective of whether B's act is within the course of his employment as janitor, A is negligent toward C.

Restatement (Second) of Torts § 307 cmt. a, illus. 1 (1965) (emphasis added). If Anderson is read to endorse the rule found in the Second Restatement of Torts, then it is unlikely that the Washington Supreme Court would adopt a “scope of employment” requirement, at least in this case. See Mudpie, 15 F.4th at 889 (looking to treatises to determine how a state's highest court would resolve a legal question).

Third, the Hicks court turned a descriptive statement into mandatory rule. The Hicks court stated that “[n]egligent retention claims generally arise when an employee is acting outside

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the scope of their employment.” 23 Wash.App. 2d at 248 (emphasis added). In dismissing the negligent retention claim because the employee was acting outside the scope of employment, the Hicks court appears to have transformed this qualified statement into an exceptionless rule.

Fourth, and perhaps most importantly, the apparent justification for a “scope of employment” requirement does not apply here. The Hicks court explained that when an employee commits tortious conduct within the scope of employment, an employer can be held liable under a different theory: vicarious liability or respondeat superior liability. 23 Wash.App. 2d at 248 n.9. The court explained that “[u]nder the doctrine of respondeat superior, an employer can be vicariously liable for its employee's torts committed within the scope of employment. . . . An injured party generally cannot assert negligent retention claims when the employer is vicariously liable for the employee's conduct.” Id. The Hicks court apparently believed that a negligent retention claim is unnecessary when an employee's...